6919.pdf
Media
- extracted text
-
PROCEEDINGS OF
A POLICY DIALOGUE
ON
MATERNITY ENTITLEMENTS AND WOMEN
IN THE UNORGANISED SECTOR
Held on
February 28,2001
at
Vishva Yuvak Kendra, Chankya Puri
New Delhi
Organised By
FORCES
(Forum for Creche and Child Care Services)
c/o Mobile Creches
D.I.Z. Area, Sector - 4,
Raja Bazar, Near Gole Market,
New Delhi - 110001
Ph. # 3363271, 3347635
Fax # 3347281
Email # forces&vsnl.com
PROCEEDINGS OF
A POLICY DIALOGUE
ON
MATERNITY ENTITLEMENTS AND WOMEN
IN THE UNORGANISED SECTOR
Held on
February 28,2001
at
Vishva Yuvak Kendra, Chankya Puri
New Delhi
Organised By
FORCES
(Forum for Creche and Child Care Services)
c/o Mobile Creches
O.I.Z. Area, Sector - 4,
Raja Bazar, Near Gole Market,
New Delhi - 110001
Ph. # 3363271, 3347635
Fax # 3347281
Email # forcesGvsnl.com
CONTENTS
1
1.
Introduction
2.
Introductory Session (Chair: Ms. bevika Singh, FORCES)
a) Importance of Maternity Entitlements -
1-3
br. Vandana Prasad
b) Legal Intervention for Maternity and Childcare:
Existing Strategies and Future birections c) Maternity Protection 2000 -
3.
Dr. Amita bhanda
Ms. Jyoti Tuladhar
4-7
Perspectives on Maternity Entitlements
(Chair: Ms. Kumud Sharma, CWDS)
a) Maternity Entitlement for Women in the Unorganised Sector Ms. R. Geetha
b) Mobile Creches Interventions - An Overview-
4.
Ms. Mridula Bajaj
8-9
Alternatives Mechanisms for Implementation
(Chair: br. Shanmuga Velayuthum)
a) Alternative Models for Legislation and Implementation
Structures for Maternity Enritlement -
Ms. Mina Swaminathan
9
5.
Action Plan
6.
ANNEXURES
I. Programme
II. Summary of Supreme Court's Judgment
m. List of Participants
10-11
12
13-21
IV. Background Papers
a)
Maternity and Childcare in the Current Context - MCC
Code: Concept and Content - FORCES
22-29
b)
Maternity Protection 2000, ILO
30-34
c)
The Continuum of Maternity Entitlements - FORCES
35-36
d)
Women, Work and Childcare - FORCES
37-40
e)
Worker, Mother or Both: Maternity and Childcare
Services for Women in the Unorganised Sector - Mina
Swaminathan in The Unorganised Sector - Work Security
and Social Protection - edited by Renana Jhabvala and
R.K.A. Subrahmanya
41-50
f)
R191 Maternity Protection Recommendation, 2000 - ILO
51-53
g)
h)
C183 Maternity Protection Convention, 2000 - ILO
54-59
Legal Intervention for Maternity and Childcare:
60-71
Existing Strategies and Future Directions
(Dr. Amita Dhanda)
V.
Maternity Protection 2000, (Ms. Jyoti Tuladhar)
72-88
VI. Maternity Entitlement for Women in the Unorganised Sector
(Ms. R. Geetha)
89-91
VH. Mobile Creches Interventions - A Challenge ( Ms. Mridula Bajaj)
92-97
VHI. Alternative Models for Legislation and Implementation
98-105
Structures for Maternity Entitlement (Ms. Mina Swaminathan)
IX.
Maternity and Childcare Entitlement Law - A Bird's Eye View
106-112
(Mr. Bikas Das)
X.
The Maternity Benefit Act, 1961
Justice)
XI.
Press Release
*
(GOT, Ministry of Low and
113-122
123-124
Introduction
The FORCES Secretariat organised a one-day brainstorming session on the issue of
Maternity Entitlements for Women Working in the Unorganised Sector on February 28,
2001 (Annexure-I). The meeting, which was held at Vishva Yuvak Kendra, New Delhi, was
organised as a dialogue between government and non-government organisations concerned
with the problems of both women and children. The meeting was held in the background of
the decision taken at the third policy committee meeting in Mumbai that the network
should concentrate on the issue of maternity entitlements as a key factor for the survival
and development of the young child. The landmark Supreme Court's Judgment of March 8,
2000 in the case Municipal Corporation of Delhi Versus Female Workers (Muster Roll) and
Another (AIR 2000 SC 1274) (Annexure-II), as well as the ILO Convention 183 on
Maternity Protection further strengthened the resolve of the Forces partners to have a
joint campaign with other like minded organisations. The main aim was to influence
government policy and to force it provide maternity benefits to all women, especially in the
unorganised sector.
The diverse groups that were present at meeting included trade unions, mass organisations
concerned with women's issues, NGOs concerned with the rights of the young child and
working women, international organisations, organisations affiliated with or feeding into
government policies and the government. Some of those present like Mina Swaminathan
(ACCESS) and Amarjeet Kaur (AITUC/NFIW) and Mridula Bajaj (Mobile Creche and
National Convenor FORCES) have been active in raising these issues for a long time within
the FORCES network. Representatives of other organisations who were present have been
either founding members or active supporters and allies of the FORCES. These were
people like Hemlata from NMPS, Ranjana Narula from CITU, Brinda Karat from AIDWA,
Kumud Sharma From CWDS, Prof Amit Dhanda NALSAR law university, as well as
representatives from the Bharat Gyan Vigyan Scmiti, Joint Romens Programme, YWCA
and others. Apart from this several state chapters of FORCES were also represented in
the meeting. These were representatives of Tamil Nadu FORCES, Orissa FORCES and
Rajasthan FORCES. Big networks like the Social Security Association of India and Breast
Feeding Association of India were also represented and present in the meeting. Finally
FORCES had also invited opinion from experts like Mr. Chaturvedi Secretary DWCD,
Justice Sujatha Manohar of NHRC, Mr. S.K. Das from Labour Department, Mr.
Subrahmanya from the Social Security Association of India, Ms. Krishna Singh of
Population Council, Ms. Jyoti Tuladhar from ILO and Dr. Kalyani Menon from Jagori (refer
list of participants, Annexure-III). These people came with a wealth of experience and
diversity of opinions that was openly shared in the meeting of 28th February, 2001.
Introductory Session: 9:30 - 10:45 (Chair: Devika Singh, FORCES)
The meeting began with an introduction by Vandana Prasad (FORCES Secretariat). She
■first step in the direction of having a dialogue for the need
said that the meeting was a
1
for a long campaign on maternity entitlements. All organisations present recognised the
importance of the issue about which two or three main points could be highlighted:
•
The government had not signed the Maternity Protection Convention of the
International Labour Organisation. She said that maternity entitlements were essential
to the survival of the young child and the health of the mother.
•
The question of maternity entitlement needs to be seen in the context of the current
economic scenario especially in cases where the number of women in the unorganised
sector was increasing rapidly and one third of the households in the country were
female headed. Thus the rights of women were integrally linked to the rights of the
child (Annexure-IV).
•
Finally Dr. Prasad raised the maternity entitlement question in the context of the
population policy. She stated that population policies were historically linked to racial
discrimination in developed countries. Giving examples she mentioned that the
motherhood endowment campaign of the 1920s in England was sponsored by the
Eugenics society that wanted to the benefits to a few aristocratic families so that the
purity of line could be maintained. Similarly the avoidance of universal maternity
benefits in the USA were linked to fears of a burgeoning black population and the first
maternity entitlements in Australia were only granted to while women in 1912. In India
too, similar discrimination will be practised once the issue of mater nity entitlements is
linked to the two-child norm. Thus the fight for maternity entitlements is closely
linked with the opposition to the two-child norm.
Amita Dhanda (NAL5AR School of Law) and Jyoti Tutadhar (ILO, .^/J/fZjmade two other
presentations in this session. Amita Dhanda's presentation concentrated on the legal
framework available for maternity entitlements while Jyoti Tuladhar concentrated on the
ILO conventions.
Amita bhanda pointed out that maternity benefits were a positive and undisputed
entitlement under Article 21 and the ESIC and Maternity Benefits Act that provided
maternity leave for a period ranging from 80 days to 12 weeks (Annexure-V). Ms. Dhanda
noted that the coverage of these acts was very limited even in establishments where all
workingwomen were covered by the Act. To prove this she quoted a study by Niru Chaddha
that only 0.25% of the women avail maternity benefits in a situation where 94% were
entitled to it. In this context she also pointed out that it was not enough to rely on the
laws, as the problem of providing maternal benefits was more than legal in character. The
demands for maternity entitlements were often contradicted by and had to fight the
recent policies of economic reforms and the consequent withdrawal of the state from the
social sector. She highlighted the need for broad based alliances in this context and
opined that the structure of maternity entitlements should be carefully thought out.
Responding to the discussion on the population policy and the economic reforms, the
representative of the Population Commission, Krishna Singh, argued that the NGOs should
2
see the two-child norm with the correct perspective. The norm was not binding at the
national level and should be only implemented if informed groups of people were supporting
it at different levels. She further stated that the national commission was not imposing its
will on the states, as its document was merely indicative and not prescriptive. Finally she
also stated the word ‘control' was now being replaced by other phrases to represent the
socio-economic and demographic transition that was taking place.
1»
a
<1
A
<»
«
However, the participants did not accept this view even though they believed that it was
important to limit the burgeoning population of the country. They broadly accepted the
FORCES view that coercion was not desirable way of achieving this aim. Brinda Karat
(AlbWA) pointed out that the two-child norm showed that the state considered it a crime
for women to have babies. She said that the two-child norm had already been imposed in
Maharashtra and Rajasthan. In these states women with more than two children were not
even allowed to avail of the PDS. It was also noted that the interface between population
policy and maternity entitlements would needed to be emphasised in future also.
Thereafter Jyoti Tuladhar made her presentation on the ILO conventions regarding
maternity entitlements (Annexure-VI). The main points of her presentations were as
follows:
■
Maternity benefits were to include all women workers, whether full time or part time
or employed in atypical dependent forms of work.
■
Leave upto 14 weeks with a minimum of 6 weeks as compulsory in the postnatal period.
■
Cash benefits that included not less than 2/3rds of a woman's insured earnings. It
should also cover pre-natal, post-natal as well as hospitalisation care where necessary.
■
Employment security that included protection from dismissal with the woman having
the right to return to the same job. It also meant that dismissal could not take place if
a woman was pregnant or ill. The burden of proof in case of dismissal was to lie with
the employer in case the dismissal took place.
■
Finally the convention also enjoin^ upon the signatories to ensure that maternity
entitlements is not a source of discrimination in employment.
■
As an additional recommendation, the ILO Convention also asked for the health
protection of the pregnant woman.
Winding up before the tea break, Ms. Tuladhar made an appeal to the NGOs and
movements that they should pressurise the government to sign the Maternity Protection
Convention, 2000.
3
Maternity Entitlements: Why And For Whom
Why Maternity Entitlements are Necessary?
■ India has one of the highest rates of IMR i.e., 78.
■ The maternal mortality is 540 per 1000, one of the highest in the
world.
■ More than 60% of the under five mortality is because of lack of
after care and malnutrition.
■ In low income groups, the daily food deficiency of pregnant women is
as high as 500 kilo calories and they need an additional fifth of food
they habitually eat to meet their requirements.
■ This is reflected in a high incidence of low birth weight babies which
is 52% amongst women with severe under-nutrition, 42.2% with
moderately malnutirioned and 37.1% with mildly under-nutritioned
mothers.
Who Should Get Maternity Entitlements:
It is often stated that all women workers should get Maternity Benefits
But
Fast changing patterns of work in rural and urban area was steadily
including 60-70 days of unpaid work. Therefore women who were not
paid for their labour should also be regarded and treated in the same
way as other workers. The recent economic survey had taken both the
money as well as the care economy into account.
Therefore
Maternity
Benefits
and
Entitlement
Should
Be
Universally
Applicable to All Women: Paid or Unpaid Workers, OR Working in
the Care Economy.
Perspectives on Maternity Entitlements: 11.00 - l.Cr (Chair: Kumud Sharma, CWbS)
Representatives of trade unions, women’s organisations and NGOs made presentations in
this session. Thereafter there was a set of panelists who represented international
organisations, government and other agencies who led the discussion. Hemalata of the
Nirmana Mazdoor Panchayat Sangh made the first presentation on behalf of R. Seetha.
Speaking from the point of view of women working in the unorganised sector, she made
three basic points:
1) That maternity entitlements was a basic right of ell working women, 98% of whom were
working in the unorganised sector
2) The case of Tamil Nadu (Annexure-VII) showed that even in cases where laws and
schemes were enacted they, suffered from at least three major flaws:
■
that benefits were only applicable one year after registration.
4
3
■
that there was no rational basis for the selection of beneficiaries
•
that the two child norm was applied in the implementation of laws and
schemes.
3) She said that NMPS favoured the formation of tripartite boards to facilitate the
process of entitlement to all workingwomen.
Mina Swaminathan (ACESS and FORCES) and Shanmuga Velayutham (TN - FORCES) added
to this. Shanmuga Velayutham pointed out that Tamil Nadu had 12 labour boards for
those working in the unorganised sector and some of these boards had proportional
representation of women. Mina Swaminathan pointed out that the government of Tamil
Nadu had levied an annual collection of 0.1% under the Construction Labour Act for
meeting the requirements of maternity benefits. She said the state had raised 28 Crores
through this method and the interest of this would be used to make claims. However there
was no specific plan about how this money would be used.
This presentation was followed by the intervention of Ranjana Naru/a (CITU) who made
the following points:
1) All movements and voluntary groups should lobby for maternity entitlements to all
women and the government should also be forced to sign the ILO Convention on
maternity entitlements.
2)
She pointed out that maternity entitlements provided a disincentive to employ women
workers in both the formal and the informal sector. She said many contract workers
lost their jobs when they became pregnant or had to leave to look up after their small
children. She said that CITU had already made a suggestion for creches in premises
of all industrial areas.
3)
CITU also saw the state as having the main responsibility for ensuring maternity
benefits. Ms. Narula pointed out that the current legislation for maternity
entitlements did not provide adequate protection because: the government had the
power to decide who to exclude, the rate of benefit was minute, the penalty for noncompliance was low and cost of hospitalisation was not included.
4)
Finally she also focused on the need for protection of maternity benefits and
employment security of women workers in the wake of liberalisation.
Elaborating on and adding to these points, Amarjeet Kaur of AITUC, said that ensuring
maternity entitlements and childcare as a part of basic needs were an important way of
ensuring the survival of the child and consequently lay down the basis for the reduction of
population. In this context Ms. Kaur made a plea for putting in more resources into
provision for basic services as well as improving peoples access to such resources. She also
stressed the importance of maternity entitlements as an important basis for the
acheivement of the goals of ECCD. The health, nutrition and socialisation of the child were
5
c
of utmost importance in this period and maternity entitlements could contribute towards
this.
Mridula Bajaj (Mobile Creches) also stressed the link between health and nutrition of
children and maternity entitlements. Seeing creches as an important way of supporting the
mother she shed light on the condition of both, health and childcare infrastructure.
Mridula Bajaj held that in most cases Mobile Creches found that the creches on
construction sites were located in cramped spaces and had no basic amenities. Finally she
added that looking from the point of experience of Mobile Creches, the voluntary agencies
could play a good role in facilitating the implementation of child and maternal care services
Maternity Entitlements is only for a period of 4 months or 80 days. What happens to the
mother after that - how can she rejoin work? Creche has major implications for the right
to work for the mother as well as for the optimism survival, growth and development of
the child. (Annexure-VIII).
Brinda Karat (AlbWA) made the last presentation in this session. Like others she
highlighted that the State was withdrawing from its commitment towards providing social
security benefits in the wake of the economic reforms. She also highlighted the assault on
food security and added that food entitlements should form an important component of
maternity entitlements. The third component of maternity entitlements that she stressed
on was the aspect of women's work. She said that work patterns were changing rapidly
where most women had 60 to 70 days of unpaid work. In this situation the process of
eligibility, identification etc. was very difficult and therefore maternity entitlements
should be universal in character. In terms of recommendations for a long-term campaign
for maternity entitlements Ms. Karat stated that the demand for these benefits should
be linked to the availability of health for all, state medical insurance of all women and
the rights of the child corer. Finally she stated that childcare and maternity benefits
should be community based and work in a decentralised system where the allocation of
resources would be through the Panchayats.
binding up the presentation aspect of the session Kumud Sharma said that the main
thrust of the discussion thus far had focused on the need for the state to show some
degree of commitment and allocate resources for the purpose of maternity entitlements.
The panelists responded to different aspects of this theme. Justice Sujata Manohar
highlighted the need for an employee neutral scheme. Mr. B.K. Chaturvedi, Secretary
Department of Women and Child Development, highlighted, both, the efforts of the
government and the obstacles before it. He stated the following points:
1. The need for sensitisation of people vis-a-vis the unpaid work of women. The
government had taken a first step towards this by including the care economy in the
economic survey of 2000-2001.
✓
2. Defending the ICDS he stated that the ICDS was today covering a population of 5-6
lakh workers. It had 10 lakh workers who were over worked and receiving Rs. 500 per
month as honorarium for work in the ICDS. In future if they were made to do any
6
*
other work than the corresponding programme for which they were working would have
to pay them extra money for it. He further admitted that the CAO had made some
serious observations about the non-functionality of ICDS and these would have to be
addressed in the 10th Five Year Plan. Under this plan the ICDS would receive a grant
of Rs. 1100-1200 Crore and the states would be expected to contribute Rs 500 Crore
each towards child development in their state. He felt that there was a 50% staffing
gap in ICDS and the Central scheme faced a major challenge of making the state
contribute their share towards filling this gap.
3. The government had already started the process of involving communities and
voluntary agencies in the process of implementation. However this participation should
not be limited only to process and form but also in terms of contribution of funds.
The Director of Labour Welfare, Mr. S.K. bas also agreed with Mr. Chaturvedi that
service delivery mechanisms needed to be improved. He said that there were 170 million
workingwomen in the country and it was difficult to implement the Maternity Benefit Act
for all of them. Apart from these two other points were also raised by the panelists.
Kalyani Menon of Jagori said that the childcare worker should not be over burdened in
the name of providing her more money, br. Sobti (BPNI) said that there was an urgent
need to highlight the links between maternity entitlements and breast-feeding,
The session came to a close with an exploration of the links between the right to education
and maternity and childcare. Raising the issue, Janaki Rajan of the State Council of
Education, Research and Training stated that the right to post-natal care of mothers and
children should be considered a part of pre-school education. She said that the state had
so far viewed the child in a fragmented way. Thus while the DCWD deals with the 0-6
years, the MHRD has been dealing with the 6-14 years. The 83rd Amendment only mention
the right to free education for children between 6-14 years, thereby leading to a
contravention of Article 45 that mentions all children. Thus the argument for inclusion of
pre-school as an important support for both mothers and children is both a part of the
fight against the 83rd amendment as well as the struggle for maternity entitlements.
Mr. Chaturvedi responded to Ms. Rajan’s argument by stating that though the government
considered the education and care of the 0-6 years as very important, it was unable to
commit resources for it because of the lack of funds. Currently Rs. 30,000 to 40,000
Crores were earmarked for the education of all children over the period of 5 years. Of
this the DCWD had demanded Rs. 500 Crore to be earmarked for pre-school education but
no money was allocated for this purpose. As, a rejoinder to this, Jaya Srivastava of Ankur
stated that the money allocated so far was on the basis of a meagre Rs. 948 per child per
year and a severe reassessment was needed if proper quality education was to be provided
to all children.
7
c
Alternatives Mechanisms for Implementation: 2:00-4:00 (Chair: Shanmuga
Velayutham)
In the context of the lacunae of the schemes described in previous sessions, Mina
Swaminathan proposed an alternative statutory scheme (Annexure-IX). In addition to this
scheme Renana Jhabvala shared the SEWA experience with the house. She stated that
the SEWA Bank provided money support and Ghee as nutritional support to all women who
were contributing to the bank for a certain period in time. This scheme worked quite well
and the Government of Gujarat had adopted it for agricultural labourers. However the
scheme wound up after five years. Today SEWA has an integrated insurance scheme that
insured the life, assets and health of a woman with a contribution of Rs. 600 per year.
Maternity benefits were also provided as a part of this scheme.
The discussion that followed these two presentations concentrated on two main questions.
First whether the statutory scheme was better than a social security scheme or not.
Second, whether cash benefits were enough to meet the maternity needs of a woman.
Raising the first question Mr Subrahmanya, Social Security Association of India, sought a
clarification about how this scheme was different from any other social security scheme.
He felt that it was similar to a social security scheme that was sponsored by the state.
Seeking further clarifications Renana Jhabvala wondered whether or not a fund would be
better than the scheme. She further pointed out that the difference was between a
statutory and a non-statutory scheme rather than between a scheme and a fund. Agreeing
with this Amita bhanda pointed out that the National Creche Fund (an example used by
Mina Swaminathan) was not a statutory fund and all funds would need associated schemes
to channel their money. Finally Mr. Subrahmanya also suggested that alternative schemes
should be suggested at three levels: National, State and Local.
Vandana Prasad and Mridula Bajaj raised the second question. Vandana Prasad stated that
the provision for cash benefits only would not be a sufficient incentive for women to stay
back from work to care for their children and breast feed. Supporting this argument
Mridula Bajaj stated that cash benefits do not prevent from women in the unorganised
sector from going to work. The representative from Madhya Pradesh BGVS, br. Rahul also
qualified this argument and stated that in most case the patriarchal system would ensure
that the woman's husband would misuse cash.
Clarifying these issues Mina Swaminathan made three points.
•
First, she said that other social security schemes only covered the women working in
the organised sector while the proposed scheme would cover all women.
■
Second, because the scheme was statutory in character the main responsibility of its
implementation would lie with state. Women would be liable to avail of benefit
irrespective of whether they could pay a contribution or not.
■
Finally she stated that the cash was the minimum benefit that all women would get and
would be especially applicable to women in unpaid, self employed and home-based work.
8
The session came to a close with a short discussion on how much money was needed if
maternity entitlements were to be provided to all women in the unorganised sector.
Calculating the amount of money that would be needed, Mina Swaminathan laid down the
following basis. She said that there were 18m births per year in 1981 census. If we
assumed that even 60% of the mothers availed of maternity benefits than 10.8m mothers
would avail of the benefit. If the daily wages of these mothers were to be protected for
120 days at the rate of Rs. 85 per day then the total amount of required yearly for
maternity entitlements would be Rs. 11016 Crores. This figure would go upto Rs. 15912
Crores if the calculation were made on the basis of current figure of 26.1 m births per
year as projected by the latest economic survey.
Action Plan: 4:00-5:30
The meeting concluded by reaffirming its faith in the universal right of women to maternal
and childcare. On the suggestion of Amarjeet Kaur the following points were identified
for immediate action:
Lobbying for maternity entitlements in parliament by using the March 2000 SupremeCourt's judgment in the case of Municipal Corporation of Delhi versus Female Workers
■
(Muster Roll) and Another It was suggested that FORCES should circulate a summary
of the judgement and amendments to Maternity Benefits and Employees State
Insurance Act to MP's in crder to get questions raised in the Budget Session.
■
Lobbying for pressurising the government to sign the ILO Convention on Maternity
Benef its, 2000. Media advocacy would be an important method of doing this.
■
Legal codification of the proposed statutory scheme through broad based discussion so
that it can be raised in Parliament as a private members bill after 6-9 months.
■
It was suggested that FORCES continue support to the ongoing the campaign for
regular i sat ion of Anganwadi Workers.
■
FORCES remain alert to the possibility of introduction of the 83rd amendment in this
session and continue to lobby for the inclusion of 0-6 years in this bill.
Amita bhanda and Mr. Subrahmanya (as a member of National Labour Commission) took
the responsibility of working out the amendments to the act and making suitable changes
in the suggested statutory scheme to present it as an alternative. Mina Swaminathan said
she would help with the creation of campaign materials revising and getting campaign spots
(already made by ACCESS) dubbed if the FORCES secretariat found funds for the
endeavour. On this note the one-day session came to an end.
How Much bo We Need Calculating the amount of money that would be needed. There were 18m
births per year in 1981 census. If we assumed that even 60% of the mothers availed of maternity
benefits than 10.8m mothers would avail of the benefit. If the daily wages of these mothers were to
be protected for 120 days at the rate of Rs. 85 per day then the total amount of required yearly for
maternity entitlements would be Rs. 1'1016 Crores. This figure would go up to Rs. 15912 Crores ij
the calculation were made on the basis of current figure of 26.1 m births per year as projected by
the latest economic survey.
9
Annexure - I
A Policy Dialogue on “Maternity Entitlement for Women
in the Unorganized-Sector”
28th February 2001 at Vishwa Yuva Kendra, New ■ Delhi
Programme
9.00-9.30 a. m.
Registration
Session One
Chairperson: Ms. Devika Singh, FORCES
9.30-9.45 a m.
Introduction to the Workshop Dr Vandana Prasad, FORCES
9.45-10.15 a.m.
10.15-10.25
Presentation on existing Legal and Policy Framework for
Maternity Entitlements Dr Amita Dhanda, NALSAR Univ, of
Law, Hyderabad
ILO and Maternity Protection - Ms Jyoti Tuladhar (ILO)
10.25-10.40
Tea
Session Two
10:40-1:45 p.m.
Chairperson: Dr Kumud Shanna, CWDS
Panel: Sri Chaturvedi (Sect. WCD), Justice Sujata Manohar
(NHRC) Ms Patrice Enele (UNICEF), Dr Kalyani Menon - Sen
(Jagori), Ms Jyoti Tuladhar (ILO), Sri S.K Das (DG Labour
Welfare), Ms Krishna Singh (National Commission on
Population), Ms. Be-'a Nayar (NCW)
Presentations by
Ms. R. Geetha, Hemlata (NMPS)
Ms. Ranjana Nirula (CITU)
Ms. Amarjeet Kaur (AITUC)
Ms. Mridula Bajaj (Mobile Creches)
Ms. Brinda Karat (AIDWA )
1:45 - 2:15p.m.
Lunch Break
PTO
10
SessionThree
Chairperson: Dr Shanmugamvelayutham, Loyola College Chennai
2.15-3.00 p.m
Convener, Tamil Nadu FORCES
Presentation on Alternative Models for Legislation
Implementation Structures for Maternity Entitlement
and
Presentations by
Ms Renana Jhabvala (SEWA and Member of llnd National
Commission on Labour)
Ms. Mina Swaminathan (ACCESS)
Session Four
Small Group Work; Future Action and Strategies
3.00 - 5:00 p.m.
Resource Persons: Dr. Amita Dhandha, Ms. Renana Jhabvala
Discussion on:
5.00 - 6:00
■
Recommendations for Legislation and Policy
■
Possible partnerships and alliances for realization of Maternity
Entitlements (including GO-NGO partnerships)
Presentation of Working Groups and discussion on Direction for
Future Action
Chair and Summation: Ms. Mina Swaminathan
11
Annexure - II
Summary of Supreme Court’s Judgment
Municipal Corporation of Delhi
Vs.
Female Workers (Muster Roll) & others, AIR 2000 Supreme Court 1274
Maternity Benefits for Women on
Daily Wages
Forms ot Discrimination against Women
’United Nations saying;
Far reaching judgement of the Supreme
Court — 8 March 2000 — but will it work
against women’s employment?
Principles of Art. 11 should have to be read
into the contract of service between Munici
pal Corporation and the women employees
(muster roll).
They also drew on the Chapter on Fundamen
tal Rights, Chapter 111, Art, 14 and Chapter
IV, Directive Principles, Art. 38, 39, 42, 43
which direct the state to strive to minimize in
equalities in income and minimize inequalities
in status, facilities and opportunities.
Art. 42 specifically speaks of just and humane
conditions of work and maternity relief.
THE CASE
(SEP. (Q-No 12797/1998 — between Munici
pal Corporation of Delhi and Female Workers
(Muster Roll) and another.
Women employees (muster roll) claimed their
right to Maternity Benefits from the MCD. The
Industrial Tribunal allowed their claim and di
rected the Corporation to extend the benefits to
all women employees (muster roll) who had been
in continuous service of MCD for three years.
MCD contested this ruling arguing that MCD
had not been brought under the provisions of,
the Maternity Benefits Act and hence were not
liable. The tribunal ruled that this was a lacu
nae and a notification to that effect must be is
sued as MCD was both an “industry” the em
ployees Svorkmen” and therefore the Act ap
plied.
The judges stated:
‘To become a mother is the most natural phenomena
in the fife of a woman. Whatever is needed to facili
tate the birth of a child to a woman who is in senice,
the employer has to be considerate and sympathetic
•towards' her and must realise the physical difficulties
which a working woman wouldface in performing her
duties at work while carrying a baby in the womb or
while rearing up the child after birth. ”
The Nagging Question
The matter went to the Supreme Court and it
ruled:
While celebrating the judgement, and the rec
ognition of the importance of protecting the
period of Maternity, the nagging question that
arises is; <rWhat will be the impact of such a
judgement on women’s employment when such
obligations are placed upon the employer?”
The need for a social securin’ cover and access
to it through mechanisms not dependent di
rectly on the employer seem to be the only di
rection in which to go. Protection of wages
during maternity need to be accessed through
a Maternity’ and Childcare Fund to which em
ployers’ contribution needs to go irrespective
of the gender of employees. Also state and
employee contributions.
ifV7e have scanned the different provisions of the A.ct
and do not find anything contained in the Act which
entitles only regular women employees to the benefit of
the Act11.
They directed that ths Tribunal should approach the
Central Government and State Government to issue
the necessary Notification bringing MCD under the
Matemiy Benefit Act, 1961 if it had not already
done so. “In the meantime, the benefits under the Act
shall be provided to women (muster roll) employees who
have been working with them on daily wages. ”
The Hon’ble Judges quoted from the Constitu
tion and Convention on Elimination of all
A
12
%
Annexurc - TH
List of Maternity Entitlements Workshop Participants
28th February, 2001 at Vishva Yuvak Kendra
S.No.
Name and Address
1.
Kumud Sharma
CWDS
25. Bhai Veer Singh Marg,
New Delhi - 110001
2.
Dr. N.B. Mathur
President
BPNI
187. Rose Avenue,
New Delhi - 110001
3.
Anu Jha
Co-ordinator
Telephone No.
3345530, 3365541
3346044 (fax)
Nav Srishti
Flat No. 122A, Sector 17,
Rohini - 110085
4.
Chanderkanta
Mobile Creches
D.I.Z. Area, Sector-4,
Raja Bazar, Gole Market,
New Delhi - 110001
3363271
5.
Lotika Sarkar
Joint Secretary
CWDS
25. Bhai Veer Singh Marg,
New Delhi - 110001
3345530, 3365541
3346044 (fax)
6.
7.
I
S.K.Das
Joint Secretary
Ministry of Labour
Shram Shakti Bhawan
Rafi Marg,
New Delhi - 110001
I
3383684
I
i
_!________
Dr Sobti, Dr. jagdish
Co-ordinator, BPN1
BP-33. Pitampura
New Delhi
7443445
8.
Sujata Manohar
NHRC
Sardar Patel B hawan,
Sansad Marg,
New Delhi - 110001
3340891, 3347065
3340016, 3366537 (fax)
nhrc@ren.nic,in
9.
Bulu Sareen
YWCA of India
10, Parliament Street,
New Delhi - 110001
3340294
10.
Reena Thomas
YWCA of India
10, Parliament Street
New Delhi - 110001
3340294
11.
Ajeet
Peace
F-93, Katwaria Sarai,
New Delhi
6968121, 6858940
12.
Dr. Rahul
Health Co-ordinator
M.P.B.G.V.S. Bhopal
E-7386, Arora Coloney
Bhopal
461086
13.
Nandi Thomas
Mobile Creches
D.I.Z. Area, Sector - 4,
Raja Bazar, Gole Market,
New Delhi - 110001
3363271
14.
R.K.A. Subramanya
Secretary General
SSAI
573, 10* Cross , J.P. Nagar,
Bangalore - 78
6580797
15.
Geeta Potsang
Student
229, Tapti Hostal
J.N.U.
New Delhi - 110067
6194746
16.
I Bobby Sanokhabur
Student
230, Tapti Hostal
J.N.U.
New Delhi - 110067
6194746
17.
Naim Akhtar
Sr. Reporter
TVUVE
2, Hailey Road,
New Delhi
3356655
18.
Adriyana
Co-ordinator
Nirmala Niketan
C-189, Pushpanjali Enclave,
I Pitampura
Delhi - 110034
7014105, 7026652
19
Jessey George
Executive Director
Surakshit
D7/10, Sector - 6,
Rohini, Delhi - 110085
7042417, 7054765, 7443445
20.
B.K. Chatuvedi
Secretary WCD
Shastri Bhawan
New Delhi - 110001
3383586, 3381495
21.
| Renana Jhabuala
I x ational Co-ordinator
SEW A - Ahemdabad
3932405
22.
Ritu Priya
Asst. Professor
CSMCH, JNU
New Delhi - 110067
6102752, 6102638
ritupriya@vsnl.com
23.
I S.G.Thakur
' Jt. Secretary. WCD
| Jeewandeep Building
I Parliament Street,
i New Delhi - 110001
_____________________
I
i
I
3348994
I
24.
Mina Swaminathan
Hon. Director
ACCESS, MSSRF
3rd Cross Street,
Taramani Institutional Area,
Chennai — 600113
044-2541229, 2541698,
2541319 (fax)
access@mssrfres.in
25.
Raj Kumari Dogra
Freelancer
5TA 16, Housing Board Colony
Shastri Nagar,
301037
rajkumaridogra@usa.com
26.
Dr. Sarojini
President
RUWA
B182A, Mangel Marg, Bapu Nagar,
Jaipur
0141 -510039, 700332,
519221 (fax)
550060 ®
ruwa ruwa@usa.net
27.
Devika Singh
Consultant
FORCES
C/o Mobile Creches
D.LZ. Area, Sector - 4,
Raja Bazar, Near Gole Market
New Delhi-110001
3363271, 3347635,
3347281 (fax)
forces®vsnl, com
28.
Dr. K. Shanmuga Velayutham
Convenor
TN-FORCES
Dept, of Social
Loyola College
Chennai
044 - 8265544
ksvelayutham@yahoo. com
29.
Anjali Alexander
Mobile Creches
D.LZ. Area, Sector - 4,
Raja Bazar, Gole Market,
New Delhi - 110001
30.
Basanti Pathak
Mobile Creches
D.I Z. Area, Sector - 4,
Raja Bazar, Gole Market,
New Delhi - 110001
31.
Preeti Bhardwaj
Mobile Creches
D.l. Z. Area, Sector-4,
Raja Bazar, Gole Market,
New Delhi — 110001
32.
Jyoti Tuladhar
ILO - SAAT
India Habitat Centre
New Delhi - 110002
33.
Neerja Jain
Mobile Creches
D.l. Z. Area, Sector - 4,
Raja Bazar, Gole Market,
New Delhi - 110001
34.
Salikavathy
Secretary
Baly Memorial Services Group
28A, GNG Colony
V aradjary apuram
Chennai - 53
35.
Mridula Bajai
Mobile creches
D.l. Z. Area, Sector - 4,
Raja Bazar, Gole Market,
| New Delhi - 110001
4602101 -4
044-6259661
4
Archana Prasad
FORCES
C/o Mobile Creches
D.l. Z. Area, Sector-4,
Raja Bazar, Gole Market,
New Delhi - 110001
36.
i
I
i
_____
i
37.
! S. Pushpa
Supervisor
TN-FORCES, W V.S
19, V.R. Ramanathan Street,
Chet Pet, Chennai - 31
044 - 8264025
38
M.Meera
Creche Teacher
| TN- FORCES. W.V. S
| - do-
i
i
39.
K.Shantha
Creche Teacher
TN-FORCES, W.V.S
40.
T. Gouri
do-
044-6255121
Baby Memorial Services Group
340/19, S.M. Nagar,
Chennai - 39
41.
Krishna Singh
Member Secretary
Population Commission
Govt, of India
3710051,4674631
42.
Janki Rajan
Director
SCERT
Varun Marg, Defence Colony
New Delhi - 110024
4623543,
4611921 (fax)
scertdel@nda.vsnl.net.in
43.
Bhagya Laxmi
Mobile Creches
D.I. Z. Area, Sector - 4,
Raja Bazar, Gole Market,
New Delhi - 110001
44.
Amita Dhanda
Professor
NALS AR University of law
3-4-761, Barkat Pura
Hyderabad
7657960
45.
Brinda Karat
General Secretary
AIDWA
121, V.P. House,
Rafi Marg, New Delhi - 110001
3319566, 3710476
46
Ranjana Nirula
CITU
BA Rouse Avenue,
New Delhi-110002
3221306, 3221288
47.
Hemlata Kansotia
Co-ordinator
NMPS
Plot 38, Moti Nagar,
Queens Road, Jaipur
356112, 308568
48.
Amaijeet Kaur
Secretary/Gen. Secretary
AITUC/NFIW
1002, Ansal Bhawan,
Kasturba Gandhi Marg,
New Delhi- 110001
3387320, 3319541
49.
Subhash Bhatnagar
Secretary
NMPS
B - 19, Subhavna Niketan,
Pitampura,
Delhi- 110034
7013523, 7072243
50.
Jeewanti
NMPS
- do-
51.
Prescila
NMPS
- do-
52.
Valeria
NMPS
- do -
Nitin Jugran
Senior Correspondent
UNI
9. Rafi Marg,
New Delhi - 110001
3711700
nitinjug@del3. vsnl.net.in
J aya Srivastava
Director
ANKUR
7/10, Servodaya Vihar
New Delhi
6523395, 6521411
53.
54.
55.
I
-I
I
i
I
I
I Reeta Malhotra
Mobile Creches
D.I. Z. Area, Sector-4,
Raja Bazar, Gole Market.
i New Delhi - 110001
/ 7
i
]
I
56.
Kamla Thakur
Mobile Creches
D.I. Z. Area, Sector-4,
Raja Bazar, Gole Market,
I New Delhi - 110001
57.
Vandana Mahajan
Alarippu
8. Samaj Kalyan Appatments,
Vikas Puri,
New Delhi - 110018
5624385, 6524389
58.
Gouri Choudhary
Action India
5/27 A Jungpura B,
New Delhi - 110014
4327470, 4314785
59.
Runu Chakraborty
Neenv Group
D-l, 59/3 DLF,
Dilshad Plaza,
Gaziabad
91-4622296
60.
Kalyani
Jagori
C-54, WBSE,
New Delhi - 110017
!
61.
Ramakant
Orissa FORCES
C/o CLAP
367. Tvlarkat Nagar.
Sector - 6, C.D.A
New Cuttuck - 14. Orissa
0671 -605680
603980 (fax)
62.
Sreelatha Menon
Journalist
i Indian Express
I B31. Express Appartments.
i Mayur Vihar I Ext
! Delhi
3702100(o)
2717357 ®
0
I
E. Singh
Surakshit
D7/10, Sector - 6,
Rohini
Delhi
I 7044792
64.
Pratibha
Journalist
Amar Ujala
6822486
65.
Roma Soloman
Executive Member
YWCA of India
B8/15, Vasant Vihar,
New Delhi
6151772
66.
Pamela Bhagat
Correspondent
WFS
A - 157, Defence Colony
New Delhi - 110024
4622102
63.
I
Annexure - IV
Background Papers
FORCES’ Background NoteMaternity and Childcare in the Current Context
MCC Code: Concept and Content
The proposal for a Maternity and Child Care Code was first put forward in SHRAM
SHAKTI, (1986) the Report of the National Committee on Women in the Unorganized
Sector. It was the first official recognition that the needs of women and young children
are, intimately interlinked and need to be considered together, since women, especially
poor, women, perform multiple roles as workers, homemakers and child caregivers, and
miffions^ of women (estimated at 9 crores at that time) were working in the informal or
unorganised sector. It was felt that child care services were not only important from the
point of view of the health, welfare and development of the young child, but equally, an
essential support services for these women. The Report suggested that a holistic review
be undertaken of existing laws, schemes and programmes and these be integrated with
necessary changes and amendments, into a single comprehensive Maternity and Child
Care Code, which would supersede all existing legislation and provide for integrated
development in the future.
It has also been well recognized through long years of experience and research, that apart
from involving the rights of the very young child and the working woman, the issue of
child care also involves older siblings directly. In particular, the older girl child directly
participates in the parenting role at the cost of her own child hood and rights.
Thus, the ramifications of the lack of child care services are immense.
The United Nations Convention on the Rights of the Child (CRC) was unanimously’
adopted in 1989 by more than 100 countries in order to ensure to the maximum possible
extent, the survival and development of the child. India too, as one of the signatories, has
laid down strategies and activities to ach^/e these goals. T he rights covered by the
CRC are applicable to all children with no discrimination based on gender or on birth
order or on biological status. They are classified into four main areas:
Right to survival: Covering the child’s right to life and the needs that are most basic to
existence; these include an adequate living standard, shelter, nutrition and access to
medical sendees.
Right to development: Include those that children require in order to reach their fullest
potential like the right education, play and leisure, cultural activities, access to
information and freedom of thought, conscience and religion.
Right to protection. Requires that children be safeguarded against all forms ofzabuse,
neglect and exploitation. It guarantees special care for refugee children, protection
against abuses in the criminal justice system and involvement in armed conflict, child
labour, drug abuse and sexual exploitation.
Right to participation: Empowers children to take an active role in their communities
and nations. These encompass the freedom t o express opinions, to have say in matters
affecting their own lives, t o join associations and to assemble peacefully.
Similarly, India is also a signatory to the Convention for the Elimination of
Discrimination Against Women (CEDAW).
The Constitution of India, through its Directive Principles, ensures certain rights of
children for their protection and care. Article 24 and Article 39(e) prohibit the
employment of children, while Article 39(f) states that attempts will be made to ensure
that “the children are given opportunities and facilities to develop in a healthy manner in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation ad moral and material abandonment.” With regard to education. Article 45
mentions that the State shall endeavor to provide, within a period of ten years from the
commencement of this Constitution, for fiee and compulsory education for all children
until they complete the age of fourteen years.
Article 14 of the Constitution promises just and humane conditions at work and Article
42 relates to Maternity Benefits.
The National Policy on Children (1974) was formulated emphasizing the responsibility of
the State to provide adequate services to children, both before and after birth and through
the period of growth, to ensure their full physical, mental social development.
Day care services, as an essential support service received its first formal reference in
policy in the New Education Policy of 1986. More recently, the Ninth Five Year Plan highlights the significance of investment in
services for the very young child as an investment in the country’s human resource
development. It also recognizes the urgent need for creches and day care services as a
support service to working women and as a fundamental requirement to universalizing
school enrollment and enhancing the spectrum of child development sendees.
Thus, there is enough to suggest that the State is publicly committed to the Child.
However, in actual fact, the fate of the very young child in India continues to be dismal
for many and complex reasons of which a lack of political will is paramount.
Though there may be grades of opinions on the usefulness of law and policy in changing
this situation, we accept that laws and policies do play a role as statements of intent and
essential tools for enforcement.
In this context, the interpretation of the Rights of the Child specifically for the very
young child is the mandate that the code seeks to achie\ e While the code itself may be
seen to have various components, namely, the policy, laws and schemes and structures
for implementation, this document seeks to define the policy’, that is, the intent and
goals of such a code.
Needless to say, every policy document exists in a specific social economic and political
context which makes it specifically relevant to its times and validates the need for its
existence.
I'he Social. Political and Economic Context of the MCC Code
The last decade of the millennium has been one of volatile and fast paced economic
change. The Structural Adjustment Programme thrust upon us by international agencies
such as the World Bank and IMF have been ushered in and furthered by~ every/
government that has come into power in this period
Where much is still hazy about the effects this has had upon the underprivileged of this
country, a great many issues of concern have emerged as a result of the structural
adjustment process. These issues have been acknowledged to some extent by all the
agencies that support this process while those who have opposed it continue to build up
an impressive and convincing argument for caution based on steadily growing experience
and analysis.
In particular, easily demonstrable trends in economic policy and ‘development’ clearly
impact the underprivileged working woman in the most drastic way.
Increasing displacement from land holdings is being seen as a result of fhe kind of
development policies being followed by the State. Whether it be for the construction of
large hydel projects or for the use of a private company, little or no compensation is made
available land for land is hardly ever provided. The result is increasing migration and
urbanization. Urban slum populations are steadily swelling.
Women who might have earlier participated in the economy of the household by tilling
their own fields or tending to cattle are increasingly being forced to go out to work for
cash. Apart from the loss of land this is also forced by the rising costs of living.
Therefore, the female workforce in the unorganised sector is swelling and women are
forced to work in situations of insecurity without being able to access support services,
policies or laws to help and protect them and their children In particular, the impact on
the care of their very young children is quite serious. Their triple burden of house work,
child rearing and wage work is typically assisted by older children, notably the older girl
child. This is a major cause of non enrollment and drop out of the girl child of school
going age. Of en ~ i greater concern is the fact that a large number of very young children
are left in the care of other children who are themselves not even old enough to be going
to school.
Simultaneously, employment patterns reveal a shift of women workers from the
organised to the unorganised sector. The organised sector itself is seeing
fundamental changes in employer - employee relationships that are eroding whatever
benefits of social security it enjoyed over the unorganised sector. In short, as in other
sectors like health and education, the State is relinquishing all responsibility towards the
social security of workers of which an enormous number are women working in the
unorganised sector. The effects on Maternity Entitlements, Wage Security and already
huge gap between the need and provision for day care services are obvious
Many other major trends compound the problem. The Health Services provided by
Government have been systematically undermined in many ways Whereas there has
always been a problem of implementation at ground level the current philosophy of the
role of the State in health and education have brought in different problems.
On the one hand, fundamental health issues like universal provision of safe water and
sanitation and food security continue to be neglected. On the other, curative services are
rapidly being transferred to the private sector which flourishes without any regulation of
cost or quality.
Government hospitals suffer from an increasing lack of funds. There are major gaps in
staffing and equipment requirements. Even essential drugs are almost completely
unavailable and are not even being manufactured by the government in sufficient
quantities.
Meanwhile, the cost of drugs and investigations in the market are rising at a remarkable •
rate. The new Patents Act and provision of Exclusive Marketing Rights further ensures
that this trend cannot be controlled at National level.
Health policies and programmes are focussing a major part of their resources on
‘population stabilisation’ while largely ignoring the primary health care services that are
essential to the success of such a programme. While on the one hand, the policy for
population stabilisation is meant to be non coercive, the two child norm penalising both
women and children is steadily creeping into law and policy.
Similarly in the Education sector, though there might have been small gains in
infrastructural requirements (too little too late) there is a clear policy shift whereby the
State’s commitment to education is being cut back in more ways than one. New (foreign
funded) programmes are clearly committed to primary education rather than the
elementary
.
education
promised
by the constitution. Even more ominously; the intention to wash their hands off Early
Childhood Development as an integral an accepted part of education is clearly evident in
the proposed 83rd Constitutional Amendment restricting the scope of education to ages 6
-14 in defiance of the constitution.
• •<
Along with the failure to provide ECCD services, the State has also steadfastly refused to
regulate the private sector in pre school education. The mushrooming of private nursery
schools has, on the whole, created far from satisfactory circumstances for the
development of very young children. Characterised by ill equipped and over crowded
classrooms and often untrained teachers, these institutions promote practices like
examinations, tests, homework , interviews, textbooks and heavy school bags for children
who should be learning by playing.
All this done in the name of freedom of choice becomes yet another route for sacrificing
the development and education of children to market forces.
An enormous amount of money has been taken on loan from International agencies for
the sectors of health and education. Apart from creating the above mentioned changes in
policy, the programmes thus created ( e g. RCH. DEEP ) are doomed to provide avenues
for wastage
\
and corruption in the absence of fundamental infrastructure \eedless to say. they also
create an additional burden of debt on the exchequer for repayment in foreign currency.
Our environment is seeing a steady detenoration in quality. Air pollution, water
pollution degradation of forests, soil erosion, chemical contamination of food and water,
inadequately evaluated genetically modified foods and nuclear hazards are what we will
bequeath the children of the next millennium.
While poverty has always been an abuse and specially upon children, hardly any
underprivileged group is left protected from the new problems related to a skewed market
orientated development though they may not yet participate in its profits.
The stresses and strains of modem competitive life are compounded by the general
insecurities due to the non-existence of social security. In addition, the values of the
market economy favour individualism and dehumanization. All this is reflected in the
growing violence and abuse upon women and‘children.
The implications of these trends in urbanization, labour, health, education and
environment; both social and physical, upon the issue of the care of very young children
are serious and severe. Large numbers of children are being left in the care of each other
thus ensuring that all efforts to attack malnutrition, provide universal education and
holistic development and combat poverty at its genesis are made ineffective.
In answer to the growing need for child care services, there has been practically no
growth of State run creches in the last five years. A total of 15000 creches run by the
Scheme for Working and Ailing Mothers and the National Creche Fund ( set up in 1994
) are meant to service the entire country. Even these rarely cater to the under twos largely
due to the inadequacies of the scheme itself. The LCDS, which could have provided a
vehicle for better care of children has not extended its scope to day care. The result has
been its poor outreach even though it is almost universally present in all blocks of the
country; 23 million children under six compared to the total of 105 million of which 60
million are under the poverty line.
Therefore, the specific goals and contents of a MCC code exist within a scenario of
growing social and economic insecurity. In particular, we underscore the urgent need to
tackle the lack of basic prerequisites for a 'decent life like food, shelter, safe water,
sanitation, safe environment, universally accessible good quality education and health
services Where the very voung child is concerned, this cannot be achieved in this given
context without the provision of day care services in the short term and comprehensive
social security for parenting in the long term
The ideal minimum requirements to safeguard and promote the protection, survival,
development and participation of the very young child may be denned thus:
COMPONENTS OF ECD
1. Pa rents
Antenatal Care including adequate nutrition
Safe deli ven' (not necessarily institutional)
and care of the newborn
Post natal care including good quality
information and services for family planning
Adequate Maternity Entitlement and Wage
Security
Paternity Leave
Day Care Services for Support
Information on ECD
2. Children from Birth to Two
Presence of a sensitive and aware adult carer
either at home, in informal care
arrangements or through day care services
Environment
Suitable
for
Holistic
Development
Exclusive Breast Feeding for 4 - 6 months
Appropriate Weaning
Adequate and appropriate (safe, fresh,
culturally acceptable) Nutrition
Good quality health services including
immunisation
Understanding and support by extended
family and community for role of parenting
Presence of a sensitive and aware adult carer
either at home, in informal care
arrangements or through day care services
Adequate and appropriate (safe, fresh,
culturally acceptable) nutrition
Non formal, age appropriate, child centred
preschool education in own language
Universal access to elementary school
After school Day care services if required
Understanding =and 'support by extended
family and community for role of parenting
3. Children from three to six years
27
CATEGORIES WITH SPECIAL NEEDS
1. Parents With Special Needs
Adoptive / Foster Parents
Single Parents
Sex cworkers'
HIX’ affected
Women in Prison
Labouring in Unorganised Sector
Migrant / Displaced
Victims of man made / natural disasters
With Disability
Victims of War / Terrorism
Minorities / Dalits / Adivasis
2. Children With Special Needs
Children of women working in the
unorganised sector
Giri Cliildren
Child Labourers
Children of Migrant / displaced families
Children of Itinerant families
Street Children
Children of Single Parents
Children With Disability
Children within minority groups, Dalit and
Adivasi children
Children of Sex ‘Workers’
Children in prostitution
HIV Affected Children
Children awaiting adoption in institutions
Adopted children
Children in Orphanages
Children of women prisoners
Child victims of man made or natural
disasters
Child victims of war or terrorism
Child victims of abuse
Finally, we would like to reiterate that not only is a Maternity and Child Care Code
envisaged to exist within comprehensive policies relating to women’s rights, labour
rights, right to health and education, it is also seen to exist within a comprehensive code
laying out the rights of al! children. However, this remains beyond the scope' of this
particular document and the experience and expertise of the groups of people that have
developed it We wish to record our commitment to all processes that lead to the
^8
CATEGORIES WITH SPECIAL NEEDS
1. Parents With Special Needs
Adoptive / Foster Parents
Single Parents
Sex ‘workers’
HIV affected
Women in Prison
Labouring in Unorganised Sector
Migrant / Displaced
Victims of man made / natural disasters
With DisabiFty
Victims of War / Terrorism
Minorities / Dalits / Adivasis
2. Children With Special Needs
Children of women working in the
unorganised sector
Girl Children
Child Labourers
Children of Migrant / displaced families
Children of Itinerant families
Street Children
Children of Single Parents
Children With Disability
Children within minority groups, Dalit and
Adivasi children
Children of Sex ‘Workers’
Children in prostitution
HIV Affected Children
Children awaiting adoption in institutions
Adopted children
Children in Orphanages
Children of women prisoners
Child victims of man made or natural
disasters
Child victims of war or terrorism
Child victims of abuse
Finally, we would like to reiterate that not only is a Maternity and Child Care Code
envisaged to exist within comprehensive policies relating to women’s rights, labour
rights, right to health and education, it is also seen to exist within a comprehensive code
laying out the rights of all children However, this remains beyond the scope of this
particular document and the experience and expenise of the groups of people that have
developed it. We wish to record our commitment to ail processes that lead to the
realization of this goal while understanding and accepting our own more limited rofe as
the advocates for the ven' voumj chiid.
f
Maternity protection 2000
In June 2000 the International Labour Conference will discuss maternity protection at
work and is expected to adopt a new international labour Convenuon and Recommendation
on maternity protection. The first discussion of this was held in June 1999.
This fact sheet explains briefly the role of the ILO in maternity protection, the process
of adopting and revising ILO standards on maternity protection and the main differences
between the existing international standards and the draft Maternity Protection Convention.
7. Hhat is maternity protection? How is it provided?
Some of the basic elements of maternity protection include the right to leave, the right
to cash and medical benefits, and the' right to job security and non-discrimination.
Appropriate maternity protection is considered to be a necessary condition for equality.
Maternity protection figures prominently in social and labour legislation around the
world. Provisions are typically found in national labour codes, social security regulations,
health and safety' rules and anti-discrimination legislation.
2. What are the ILO standards relating to maternity protection?
Maternity protection of women at work has been of core importance io the
International Labour Organization since its establishment in 1919. The Maternity Protection
Convention, 1919 (No. 3) was among the first international labour standards adopted. It laid
out the basic principles of maternity' protection, as described above - the right to leave, the
right to cash and medical benefits and the right to job security, as well as the right to nursins
breaks during working hours.
In 1952, Convention No. 3 was revised to take into consideration developments in
national law and practice, especially in the realm of social security. The Maternity Protection
Convention (Revised), 1952 (No. 103) retained the same principal elements of protection, but
the means and manner of providing benefits were made more explicit. Medical benefits were
to include urenatal, confinement and postnatal care by qualified midwives or medical
practitioners, as well as hospitalization if necessary. As regards cash benefits, a minimum
income replacement rate of two-thirds of the woman’s previous insured eaminas was
specified for those benefits derived from social insurance, while women who failed to qualify
for benefits were to be entitled to adequate benefits out of social assistance funds, subject to
the means test required for social assistance. Nursing breaks were to be counted as working
hours and remunerated accordingly where this matter was governed by laws and regulations.
In addition, an accompanying Recommendation, 1952 (No. 95) was adopted. This
instrument recommends the extension of the leave period to a total of 14 weeks, the increase
oi cash benefits to equal 100 per cent of the woman's previous insured earnings, the extension
of employment protection, the preservation of seniority rights and the woman’s right to
reinstatement. Much of the Recommendation focuses on the protection of the' health of
employed women during the maternity period. Medical benefits are clear’y specified,
guidance is provided on the establishment of facilities for nursing mothers and their children,
and occupational safety and health questions are treated.
Several other international labour standards are relevant to issues of maternity
protection. These include the Discrimination (Employment and Occupation) Convention,
30
1958 (No. Ill), the Workers with Family Responsibilities Convention, 1981 (No. 156) and
Recommendation (No. 165) and the Part-Time Work Convention, 1994 (No. 175).
3. What arc international labour standards and what is their effect?
International labour standards include Conventions and Recommendations.
Conventions are international treaties that place, binding obligations on the member States
which ratify them to implement their provisions in national law and practice. Follow-up
mechanisms, which include regular reponing requirements as well as a complaints procedure,
ensure that Members actually do implement the provisions. A member State that does not
ratify a Convention is under no obligation to bring its national law and practice into
conformity with that Convention. However, if a Convention is not ratified, it can still
influence national legislation. Indeed, member States do take ILO Conventions into account
when considering legislative or policy changes.
A Recommendation is not ratifiable and its provisions are not legally binding.
Recommendations contain recommended practices and possible guidance for .-future
lesislation. In many cases, they expand on the provisions of Conventions, providing detailed
suggestions on how a Convention might best be implemented.
Adoption and revision of intcxnational labour standards is a legislative process, which
involves intensive consultation of ILO member States, employers organizations and workers
organizations over a three-year period as well as discussions at the International Labour
Conference for rwo consecutive years. All consultations, discussions and decisions involve
the tripartite constituency of the ILO, that is governments, employers’ organizations and
workers’ organizations, speaking with an equal voice. The standard-setting process is fully in
the hands of the tripartite constituents.
An important feature of ILO Conventions and Recommendations is that they set a
universal standard while taking account of the great differences in economic and social
development among member States.
4. Why revise Convention No. 103? Where are >ve now in the revision process?
Since 1952, women’s employment patterns have changed greatly aiound the world.
Women’s economic activity rates have risen dramatically and women no\^ tend to work
throughout their childbearing years. Women contribute a higher proportion of family income
than ever before. The importance of maternity protection for employed women has grown in
consequence.
Since the mid-1990s, the ILO has made a major effort to evaluate the relevance and
effectiveness of international labour standards in order to ensure their suitability for today s
world. This has involved the review of the entire body of ILO Conventions and their
classification according to whether they are fully up-to-date (in which case their ratification
should be promoted), whether they require revision, or whether they should be shelved,
abrogated or withdrawn.
As of 1 5 March 2000, 38 out of 174 ILO member States have ratified the Maternity
Protection Convention (Revised), 1952 (No. 103) the low level of ratincation and the
identification of a number of technical obstacles to runher ratification were among the
concerns that were taken into account in the Governing Body decision in March 1997 to
revise the 1952 instruments in line with current needs, reflecting the advances made in many
countries. The Governing Body therefore placed the question of maternity protection on the
—o—
f
agenda of the International Labour Conference. The first discussion ot a proposed new
Convention and Recommendation on maternity protection was held in 19.99.
The second discussion will take place in June 2000. The Office has prepared the
Conference repons which will serve as the basis for this discussion, based on the comments
received from constituents on the texts agreed at the 8 /lh session of the International Labour
Conference in June 1999. The senes of repons prepared by the 1LO for discussion at the
Conference are entitled
Proiectton at Work. They are available in English, French
and Spanish through the internet at www.ilo.org. Follow the path leading through the
International Labour Conference to the ST11 and S8'h sessions for the repons.
\aVvo
-
w* c-'"'
th’
1 '■ -f' ' -.
"
~
5. What are^nain differences bewden^nvefition i^TlOd and the Draft Convention?
Some of the princioai differences between Convention No. iO? and the Draft
Convention are summarized beiow. In this brief fact sheet it is not possible to analyse even
difference between the two instruments.
a) Scope
. .
The scope of a Conversion determines who is covered by ns provisions. The scope
provision of Convention No. 1C3 .Truc/e 1) is highly detailed and contains long lists defining
the workers who are covered as well as five paragraphs (Article 7.1) regarding those who
might be excluded from coverage. For example, certain categories of non-industnal
occupations and domestic work for wages in private households may be excluded.
In contrast, the scope provision of the Draft Convention states (Article 2.1) that: "This
Convention applies to ■all employed women". It embodies the principle ot broaa coverage.
The Draft Convention also allows the possibility of exclusions (Article 2.2). It does not list
the exclusions permitted but specifies that these could only be taken with regard to limited
categories of workers or enterprises, only due to special problems of a substantial nature and
only after consulting representative organizations of employers and workers.
Both Convention No. iC- (Article 3.1 and 3.2) and the Draft Convention (Article 3.f
provide a basic entitlement to '.2 weeks of maternity lea', e. Convention No. 103 and the Draft
Convention deal differently with the issue of a penod of compulsory leave:
Compulsory leave
As shown above. Convention No. 103 states that at least six weeks of postnatal leave
should be comoulsory. The Draft Convention also provides for a compulsory leave penoo.
but leaves it to the memoer bt r.e :o determine the ’length and distribution ot any compulson
leave penod before or alter cr.: .coirtn.
■rovides (Article 3.5 ana 3.6) for the possibility of additional
Convention No. 10j a
leave in case of medically cer/.nec illness arising from pregnancy or connnement. The Dran
Convention extends the protezxor. < Article 4) by covering not only maternity-related illness.
but also complications anc r.s:< of complications, which were previously treated in
Recommendation No. 95 (Parzzraph 1 (2)).
c) Benefits
7.2
Z*
CH’ lro
06919
&
oOc°'■“?«
Rage 4
v^ETl^NGTISbr-MateriutVPfbtection 2000 .wpd
iol
Both Convention No. 103 (Artide 4.1) and the Draft Convention (Artide 5.1) state
that cash and medical benefits should be provided to women who are absent from work on
leave
benefits must
must be
leave. The
The cash
cash benefits
be sufficient
sufficient to maintain the woman and her child in proper
conditions of
of health
and at
at aa suitable -3
standard of living. The medical benefits include
conditions
health and
nrenatal childbirth and post-natai care, as well as hospitalization care, when necessary.
Convention No 103 states (Article 4.4) that the cash ana medical oenefits must be
provided through compulsory social insurance or public funds. Employers may not be
individually liable to pay for such benefits for the women they employ ■Article 4.8). The
Draft Convention does not specify how the benefits are to be provided. It simply requires that
they be provideck
the level of cash benefns under a!1 circumstances,
whereas Convention No. 103 sets the level only for certain cases:
Benefit levels
As indicated above, under Convention No. 103. the level of cash benefits is set at no
less than 2/3 of the woman's earnings taken into account for the purpose of_ computing
benefits (Artide 4.6). This rate only applies, however, to cases in which nenetits are pai
through compulsorv social insurance and are based on the woman's previous earnings.
“ The Draft Convention has retained the 2/3 rate, but that rate wou.d apply to any
payment svstem which bases benefit rates on an individual woman’s previous warnings
Mrtic/e 5 3). The Draft Convention also provides (Article x4) that where other methods ar
used to calculate benefits, the benefits should provide on average a comparable .evel of
protection.
d) Employment protection and non-discrimination
protection asainst dismissal due to pregnancy or cmidbirth is consmerea to be one of
the fundamental elements of maternity protection. Job security is proviaec tn some extent
through Convention No. 103, which prohibits dismissal during maternity leai e (Ai tide 6).
Employment protection
As illustrated above, th-: Draft Convention provides a longer period of protection
which includes the pregnancy, absence on leave and a period following the woman’s return to
work (Artide 1). However, die protection is no longer absolute. Termination of employment
would be permitted on grounds ‘unrelated to pregnancy or childbirth and its consequences or
nursine". These miaht include, for example, senous fault or. the part of the employed woman,
shut-down of the undertaking or expiry of the employment contract. The Draft Converno
also places the burden of proving that the dismissal was unrelated to pregnancy or childbirth
and its consequences or nursing or. me employer.
In addition, the Draft Ccmention contains an article on the adoption of measures to
ensure that maternity does no', constitute a source of discrimination in employment (Artic e
8). Convention No. 103 contains no comparable provision.
ei Breastfeeding mothers
--- The Draft Conation, kke Convention No. 103, provides an entitlement to one or
more da.lv breaks for a womar. to nurse her child. The provision is intended to apply to
mothers who breastfeed their children, including those who express milk at intervals dunno
33
• | johri vvoouau - ciNkjLion-iviaieriiiiyricHc^iiuu
...Ho
working hours for later use.
Nursing breaks
Convention No. 103 states that breaks will be counted as working time and
remunerated accordingly where the matter is governed by national laws. Where the matter is
governed by collective agreement, ths position depends on the relevant collective agreement
(Article 5.2). In other cases. Convention No. 103 is silent. In contrast, the Draft Convention,
as showm above, requires that nursing breaks be counted as working time and remunerated in
consequence in all cases (Article 9.2).
The provisions of the Draft Convention and Recommendation, as described above, are
subject to amendment by the International Labour Conference, before the new instruments are
finally adopted.
4 April 2000
^4
Maternity Entitlementsfor Women in the Unorganised Sector
A Policy Dialogue; 28 Feb 2001, New Delhi
Back ground Paper (FORCES)
The Continuum of Maternity Entitlement
In the course of the last few decades, the pressures on women have increased along a
number of dimensions and due to numerous factors. These include the changing
demographic picture, (Census of India, 1981,1991) increased visibility of women in the
work force combined with increasing marginalisation, increase in the number of woman
- dependant households, erosion of certain family structures and networks, female and
child malnutrition, high female illiteracy (UNICEF, 1990) increasing violence against
women, commercialization of marriage and several other factors, including direct
attempts by the State to manipulate reproduction.
A COMPARATIVE VIEW
India’s rating in respect of maternity laws and policies can be visualized from a
comparative review (Swaminathan, 1992) of laws and policies relating to maternity and
child care in 135 countries (Source - ILO) which shows sharp contrasts between socialist
(present and former) and market-oriented countries, as well as between developed and
developing countries. *
x
In the developed world, the most generous provision, (including paternal leave) is found
in the Scandinavian and some West-European countries like France, Germany and Italy
with a long tradition of socialism, welfare state, powerful labour and women’s
movements, declining birth rates and universal nuclear families. Almost as good is
offered by the ex-Socialist countries of Eastern Europe and (ex) USSR with much lower
standards of living, while the Anglo - American market oriented countries have the least
favorable provisions in the developed world.
In the developing world, again, the Socialist countries of China and Vietnam offer a
strong contrast to the market oriented economies. Though the majority of women in this
later group, which includes India, are in the informal sector, most of these countries
(several of which are ex-colonial) have borrowed their legislation directly from the
industrialized countries with very different conditions, and it is hence often inappropriate
to their situation. Some modest adaptations are now being tried in some places.
Maternity and Child care Support by Nature of Polity and Level of Development
|O
s
o
c
Ex-USbR
E. Europe
7-8
China
Vietnam
5
I
A
L
I
S
T
(
Scandinavia
W. Europe
7-8
5
i
I
Cuba
Some
Latin &
African 4
M
A
R
K
E
T
Anglo
American
Japan
5
India
Ex
colonial
3
jo
Developing
————
►
Developed
Rating Scale of Maternity Support Laws and Policies from best to worst
KEY
9
8-7
7-6
6-5
5-4
4
4-3
1
Sweden, Norway. Finland, Denmark,
Germany, France, Italy;
Ex-USSR, Hungary. Czechoslovakia, Poland, Rumania;
China. Vietnam;
Australia, Canada. U.K., New Zealand;
Costa Rica. Chile, Cuba, Nicaragua, Egypt, Niger, Sri Lanka and others;
India. Brazil, Mexico. Jamaica, most African, Arab and Asian Countries;
U. S. A.
Reference:
This Paper has been culied out from “ The Continuum of Maternity and Child Care
Support" - A Critique of relevant laws. Policies and programmes from the perspective
of Women’s triple roles; by Mina Swaminatham This paper was presented at the
Sixth Conference of the Indian Association for Women’s Studies, Mysore, may 31 1993
36
y PpIipA, Dialogic on ‘"Maternity Entitlement toi Women
~~
jn the t'norganized-Sector**
2stl» February 2001 at N islnva Yuva Kendra. New - Delhi
Backgnmiul Note prepared by FORCES
WOMEN. WORK ASP CHILDCARE
Within the family, the onus of childcare has traditionally lain upon women, and
specifically the mother This perspective has been thoroughly exploited, or remained
unchallenged at best bv most agencies dealing with the issue. It is convenient to a but
the targeted mother, that she remains not only the root cause of all the ills that befall the
voung child, but also the key to all solutions It is not surprising, therefore, that feminist
groups have often reacted (publicly, if not privately) against this maternal .mage of the
woman.
It is worthwhile to examine the situation of women in the current situation, the
multiplicity of roles they must play and the support and participation they may expect
from the other ‘players' in our society.
Even today, women cam’ the triple burden' of child bearing and rearing, housework and
economic activity. It is the latter that must be acknowledged, as a basic right and a critical
need of the day, to fully understand the major gap and investment required in childcare
support.
One of the main problems in enumerating women as workers is the all pervasive
patriarchal attitude that assumes that women do not work at all or that women do not
work outside of the home. This bias also influences the census ( see below).
We go by the premise that all underprivileged women are perforce working women. 93%
of these (over 12 crores) would be working in the unorganized sector' , which is also the
main source of livelihood for Indians.
One of the main problems in quantifying' women's participation in the economy, and
therefore planning for and supporting it, has been the inadequacy of the census process
itself In 1991 the Work Particioation Rate (WPR) of women was 22.3% as compared to
51.6% for men However, studies done with greater sensitivity to the^types of work,
women do, reveal a vastly different picture as indicated in the table below
Census FWPP.
0.7%________
16.4%______
i Jossowal
0%
_________
| Dulher_____
7,1%
i Balian_____
0.3%______
i Dharamgaih
SCOPE Study. 1995
I Village
! Kalwa______
Census MWPR
50.7%_______
I 58.2%_______
j 59%_________
! 54.6Q -_______
j 545%_______
j Surx ey FWTP?
i 51.2%
i 58.2%
I 48 7%
: 47.5%.
i 53.5%
j Survey MWPR
| 57%
~~
i 67.3%_______
j 60.8%
I 68.5° .»
I 65.3°o
FVVPR - Female Work Participation Rate
MWPR- Male Work Participation Rate
Obviously, this has significant repercussions on policy formulations to do with labour
and social security, as well as allocations of resources to support services such as child
care services
Though trends in (un) employment take many years to show clearly, some trends have
gathered enough evidence from a variety of sources. Organized employment is growing
at a ‘snail’s pace”' compared to demographic growth. There is an increasing
casualization of work with a rise in contractual work.
Year
I Persons
1972-73
1977-78
1983
1987-88
1993-94
Males
1972-73
1977-78
"II OQQ
1987-88
1989- 90
1990- 91
i~1993-94
j Females
I 1972-73
I, 1977-78
i 1983
I 1987-88
! 1989-90
j 1990-91
| Round
Self
employment
In
Percentages
Regular
employment
In Percentages
Casual
employment
In Percentages |
27
32
38
43
50
41.2
42.4
41.8
42.8
42.3
46.3
41.8
40.0
40.3
39.4
12.5
15.8
18.2
16.9
18.3
27
32
38
43
45
46
I 50
i__
I 27
| 32
I 38
I 43
£4_5
I 46
i 50
39,2
40.4
40.9
41.7
42.3
40.7
41.7
50.7
46.4
43,7
' 43.7
10.1
44.2
42.1
15,4
14.6
16.4
15,1
16.2
48.4
49.5
| 45.8
I 47.1
~ 48.6
' 49.0
’ 45 4
27.9
24.9
| 25.8
I 27.5
] 29.2
I 25.9
I 28.6
23.7
25.6
28.4
25.4
22.2
25.1
26.0
I
13^.
I
I 1993-94
Source. S S Sur\ anar\zanan, Level and Pattern of Female Employment in Gender and
Employmein in India. 1999, Delhi and Urban Statistics of India, 1996. NSSO DATA /
♦
94 Percent of the Vvorkingwoinen in Delhi are in the unorganized s'ector. A
report by the Delhi Commission for Women states that 90 per cent of the rural
and 70 per cent of the urban women are unskilled labour and also perform their
domestic duties. (Delhi Commission For Women)
! ♦
At an average most women spent 7 hours outside the house and 4 hours working
inside the house thus making their workload of 11-12 hours per day. This leaves
them little time to attend to their young children who require attention during •
the early years.
I' ♦ There is no social security for these women who start working one month after
J
their child is born.
I
I (Indu Pathak and Pushpa Patnaik Women in the Informal Sector, NIUA, 1991).:
vVhcie women working in the organized sector are concerned, since the State has been
the largest employer of women through the public sector, privatization has led to a
decline in women employees from 8% in the eighties to below 2% in the nineties'. More
and more women being pushed to self-employment or the unorganized sector and are
unable to prove their status as workers. This means that less and less women are able to
avail of maternity and child care benefits or any kind of social security at all. They also
find no protection from the law. Simultaneously, wage security is seriously endangered
and already meager earnings are further compromised Thus the trend is one of an
increase in the relative and absolute poverty of women. Where one third of all households
are already women headed'1, the repercussions upon the very young child of these trends
in employment are grave. Women who must work for the survival of themselves and
their families have to do so regardless of how and by whom their young children would
be cared for Images of a tiny six month old left alone covered in faeces and flies crying
in a jhuggi or being carried around by a pot bellied three year old with a grubby bottle in
the other hand are not at all unusual. Those that choose the devil’s alternative of staying
home eat less and their children eat less. Either way, there seems little hope for a situation
in which one of three babies is bom of low birth weight and one of two children are
malnourished For the poor it is a catch 22.
From the point of view of the very young child, it must be said again that in most
circumstances, the child is best looked after within the family and not in institutions
However, rhe family does not exist in a socio economic vacuum If the function of caring
for children is to be given the recognition due to it. society would have tc provide rhe
circumstances and svstems bv which a family is enabled to stay out of the ‘market for
that period of rime In reality, the concept of paternity leave hardly exists though some
State statutes have now provided 15 days paternity leave Maternity leave and benefits
can onlv be accessed bv women working in the organized sector which is only about 7° of all workingAvomen The leave itself does noi even provide for the 4-6 months o’
3^
recommended exclusive breast-feeding. Creches on.worksites thus become one important
way in which parents may continue to contribute to the- care of their young children while
earning their livelihood.
Recently there have been some encouraging moves to extend maternity entitlements to
the unorganized sector; a recent Supreme Court Judgment pronounces that muster roll
workers of the Municipal Corporation of Delhi are entitled to maternity entitlements and
the Construction Workers Act of 1996 also potentially provides for similar rights for
construction workers.
However, generally speaking, far from gaining universal recognition and support the
triple burden’ of women’s work rearers is further compounded by the sharp rise in prices
of food and health care. Indisputably, this is also the result of the State’s unwillingness to
ensure control over even the basic minimum requirements for a ‘human’ life
Project AC( J'.SS
M.S. Swaminathan Research Foundat.on
3rd Cross Street, Taratnani Institutional Aiea
Chennai - 600 113
• 91 - 44 - 2351229, 2351698
Telephone
’:91 - 44 -2351319
Fax
: acccssi^mssL'l rcb.iu
E-mail
iTiina@mssrfres.in
THE UNORGANISED SECTOR
’
.............
; WORK SECURITY *M0 50CIKL FROTtCTIOM
Woik Security and Social Protection
■ lii'd b\< RENANA IHABVALA, Sel/^vijiltiyi'd Woman's /lss<»iiiliim
.Mmiiihil'/nl.
and R K A SUBRAHMANYA, Sodal Security Association oj huha. lian^i »c
This book addresses the important issue of reaching social
which now comprises 92 per cent <>
"rJAi'i " Lc
(hr government s various schemes Im social scemm. a>
• 2000
• 192 pages
• Cloth: Rs 345.00
(0-7619 9419-X)
• Paper: Rs 195.00
(0-7619-9420-3)
^n^um:
CONTENTS: Eoivwurd by E1A R BIIA1T / Sleunng Basu M .!>. I. <«; LT1\.|1(ls jn StlCi.1| Secuia Kf.X.WA
SUBRAHMANYA and RENANA JHABVAIA , 1’a.•uapat.. '
,
,)„■ I no.^n...,! ..... .
I1IABVA1.A / Strategies lor IToteclive Soo.il S<<■‘"'f ':
welfare fund-: An Indian Model lor Moiko m ih.
Existing Social Sec n’ity Measures Ji K A SUBKAHMAM. ■
• •
W()in(;n Woilicis MHUXl CHATTERJEE and
Unorganised Set tot R K A SUBRAHMANYA / Organising nsi
| k ikh (,u.e c N |A|OO / A Cainiprchcnsne
IAYSHRFEATAS / Health Insurance lor the 1 oor: Innoxat o s
•
(SEWA)—RUR.U. TEAM /
!ip'™7.o HeriU. C»-e SOC1E1Y FOR FPWOTION »W»
Mother or Both?: Maternity and (-hilcl Gaie St ixltis ‘l’1 " 1
,k||U| j higniiy 'nd Ideniiiy MARUIA Al.I l.K
Mobile Creches—A Case Study BRiNDA SlNt.H /
'M xyA‘ /
lil)g Dis;isler Mitigatii....... th -Sooal
CHEN / Social Security in the Age ol Agerag R K A SUBRAI IMA.
.
Securhy MIH1R R BHATT / Conclusion: Endnote / Append.s.-s
/ !
U'orker, Mother or Both
9
Worker, Mother or Both: Maternity
and Child Care Services for Women
in the Unorganised Sector
Mina Swaminatiian
t he recognition that women simultaneously perform multiple roles in
suciety-as workers (economically productive role); as home-makers
(consumer role); mid as child-bearers and -rearers (reproductive rcle)Ls been late and slow in coming. It is also undeniable tint the reproductive
nei iod ol women’s lives is also the lime they arc likely Io be most produc
tive as wot kci s, and most under pressure ns home-makers. I lencc, yoiyjg
women will! young children are those who most need support, especially
in their toles as mothers and home-makers, Io enable them to fulfil their
economic roles adequately, and also to enable them to participate m tram-
ing and in civic and political life.
The concept that such support should be provided m the form of ser-_
vices, since society has some obligation to provide such support, is also
a relatively new one, and still unpopular among those who regard child
rearing as a private responsibility to be carried out as best it can by each
family. Unfortunately, in this context, the word ‘family refers only to the
woman, who is traditionally seen as being responsible for clnld-reanng.
This concept has been deeply ingrained in women as well as men, so
much so that it is still relatively rare for working women to expect, let
alone demand, support services as their right. Widespread social accept
ance of the need for suppoil services is yet to emerge.
’
While a few efforts have been made to provide maternity and child
care support, these have been largely unrelated to each other and have
shown modest growth since Independence, further, they have been con
fined almost entirely to the organised sector, though in India over 90 per
cent of the female workforce is found in the unorganised sector. The
Report of the Committee on Women in the Informal Sector (Shram Shakti,
1988) was the first to articulate the idea of the Continuum of Maternity
and Child Care, as the two arc closely linked, and together tefer to the
woman’s reproductive role. The Report made a powerful plea lor a com
prehensive policy ofsupport for women working in the unorganised sectoi.
Within the continuum, two broad divisions can be made. The first is
the period before and after childbirth, till the child is about 2 years old,
which could be described as maternity and infancy. During this period,
close proximity of the mother and child and constant access nre the major
needs of the child, both for breastfeeding and psycho-social development.
This period is probably best dealt with through entitlements to the mother,
that is, various supportive arrangements directed nt the woman which
enable her to carry out her reproductive and productive roles. The second
period, starting from when the child is nbout 2 years old, and with a
flexible upper limit till the child is 4, 5 or 6 or can be cm oiled in primary
school, is probably best handled through services, which reach out diiectly
to the child.
A brief survey of the position with regard to each of these aspects is
given in two sections, the first dealing with entitlements for maternity
and the second with child care services. In conclusion, some suggestions
for policy and programmes arc made.
Maternity Entitlements
Wlmt kind of entitlements nre available to women for childbirth, bi east
feeding and child care for the first two years of the child’s life?
There are several laws which directly or indirectly affect lactating
women and children below 2 years (Table 9.1). Of these, only two, the
Employees* Stale hiSJrancd Act (1948) and the Maternity Benefit Act
(1961), directly address the question of maternity.
Both these Acts provide three months of paid malci nily leave to women
working in establishments employing 10 (sometimes 20) woikers, that
is, for the organised sector, flicy also provide protection against dismissal
IVorker. Mother or Doth
*'’
xS
Mino Sutiinintifhtin
Tamil Nadu Integratc.d Nutrition Project provide nutrition to pregnant
and against arduous or haza.dous woi k during picgnancy, and for nursing
and lactating women as well as children. The Employment Guarantee
Scheme in Maharashtra offers maternity benefits and creches, while others
breaks dining lactation.
provide cash benefits.
Table 9.1
Lans AlfedliiR UcUlhiR Women. »m<l Children of 0-2 Ye«n
Elllpl(^>'cctl, Stale Insmmicc Act
Fncttnies Act*
Mines Act*
Plantations Act*
Malctiiily Bcnelils Ad
Beedi and Cigar Workers’ Ad*
Conlrocl Labour Ad*
Inier-s’.atc Migrant Workers’ Act*
I ii Pa nt Milk Substitutes Act
Table 9.2
Schemes Affecting Lactating Women, and Children o( 0-2 Yeats
1948
1948
1950
1951
1961
1966
1970
1980
1992
National Level
Integrated Child Development Services
1974
1974
Maternity Assistance Scheme
1995 .
Scheme of Assistance to Criches for Working/Ailing Mothers*
State Level
Employment Guarantee Scheme
Tamil Nadu Integrated Nutrition Project
* Provide fur creches at the workplace.
Maternal Protection Scheme
Muthulnkshml Reddy Childbirth Scheme
Scheme for Pie'gndht Agricultural l.nlwmcr_s
No similar legislation exists for women in the unorganised sector.
Tlmuglt. maternity bcnelils me technieidly available to beedi workers
under the IJeedi rtnd Cigm Wmke.s’ Act. records show that very few
Mahnrnshtrn 1974
Tamil Nadu 1980
Gujarat |9R6
Tamil Nadu I 9RR
Audliia rnulr*li I
• This scheme Is discussed in the section on child care jerviccs
women wotkers arc able to avail ofthem because of extslmg conditions
and their lack ofawarcncss of the bcnelils. In cases where there are strong
Three states (Gujarat since 1986, Tamil Nadu since 1988 and Andhra
unions, the benefits have been availed of.
Though between a third and a half of all ngriculturnl labourers arc
women the ptoposed Ag.icu
al Wotkets1 Bill makes no direct mention
Pradesh (APJ since 1990) provide a modest cash benefit of Rs 500 800
for maternity Io women below the poverty line. The Andhr.4 Piadcsli
scheme is restricted to women agricultural labourers. Provision was made
in the central government’s budget for similar benefits, but the extent of
implementation is not clearly known. The weaknesses of these schemes
of maternity, and the Construction Wo.kcrs’ Act (1996) has not made
any positive advance in this direction cither.
Moreover, some of the legislation is restrictive rather than enabling in
are as follows:
nature, like the Infant Milk Substitutes Act, which strictly regulates and
.eslricts the promotion, disti ibution and donation ofbnby foods mid milk
1. Eligibility is defined as ‘below poverty line’, thus keeping out (hose
substitutes and hence docs little to help women, reducing instead of en
larging their opticus. I he remaining Acts listed in Table 9.1 provide for
*
cicchcs at the workplace. They will be discussed later.
“ In recent years, the central government as v. ell as several state govern-
corruption right at the grassroots. Besides, it fails to recognise that
women workers above the poverty line also require support as
incuts have launched schemes to support women during picgnancy,
childbirth and lactation with cash, nutrition or services. 1 hese schemes
. i i
are specifically targeted at women who cannot claim benefits through the
law which only addtesscsjhc organised sector. But these schemes do not
have the force of law nnd thus benefits accruing from them cannot be
claimed ns a right or be contested in court. The schemes can bo altered
or wound up by the government without legislation. I hese schemes are
shown in 'fable 9.2. The Integrated Child Development Services and the
who may be just above it, or who arc unable to establish their
eligibility, and also giving scope for cumbersome red tape and
mothers.
2. The woman’s work is not referred to (except in the case of AP). so
the objective of providing wage protection is not necessarily fulfilled.
3.
r
Eligibility is restricted to two children, excluding the woman woi ker
who may no» be iu a position to control the decision on the number
of children she bears and placing a further burden on her. fur thcr,
this Contravenes the right of the newborn to nutrition, as provided
li'oikci. Mother or Hofh
in
•>£ i
A lino Sh aminollion
L2 *
allocated is Rs 500. What women actually get after allowing lor costs
.1.C Convention on lite Rights of the Child which has been ratified
eie ai'e a tn..... er of other weaknesses in intpletnenlation. Eigp.es
4.
ille ,,.,1 available to show how many women are getting even th .
limited benefits. But a study which was conducted «IV« n
bleak piemte of the utilisation oi the scheme m lanul Nadu (see
J’iguie9.1)
be eaten on the spot; or a week’s ration to be taken home. 1 he supplement
is only available td'womcn below the poverty line. Studies show that
only about half the ‘eligible’ women lake the supplement and little is
known about how the ‘lake-home’ food is shared and used in the family.
However, studies in Tamil Nadu show that lhe nutrition scheme is moi e
Figure 9.1
Ulllhntlon of Caih Sapporl Scheme In Tninll Nadu
400 -
and bribery is, of course, much less.
‘ The Integrated Child Development Services and the Taiml Nadu Inte
grated Nutrition Piojecl ppividcjcniiclwcl lloui :»s n iniliilional supple
ment Io pregnant and lactaling women, cidicr in the fonn of a ‘laddu’ to
widely known and availed of than the cash support scheme.
370
Child Care Services
350
300
200
Programmes which aim al providing child caic sei vices to women woiking
in the unorganised sector can be categorised as spccijic services, which
try to meet the needs of specific groups of women, general services addies-
150 ■
sed to all poor women, and innovative programmes.
' 250
100 •
Spccinc Services
50 •
0
Eligible
Awnrc
Applied
I’arlinlly
Received
Fully
Received
Out of 370 •eligible’ women, that is, those below lhe povc.ty line with
lwo or less children, only half were aware of the schemeand oabou
one-third applied, perhaps because of a reluctance to face lhe d ill cullies
in getting the money. Due to delays, red tape, need for repeated vis. s
bribes and other problems, only about one-tenth rece.ved even parlia
payment, and only 5-6 per cent had received full payment al lhe lune o
optsals made by NGOs in Tamil Nadu suggest that to enable women
to stay off the labour market for at least a few months to care for the
newborn child properly; it is necessary to Pro^e wage Prmeet^l at
least at the level of minimum wages for a per.od o four to six momlw.
Al the current levels of minimum wages in Tamil Nadu (that is, Ks
ner d iv) md allowing for 21! woiking days per month for four months,
his tmid translate as Rs 1,600 (20 x 20 x 4), while lhe amount presently
IVomeit Workers
There arc several laws inaiidaling cicelies fur the cl ildrcii ol women woi k-
ers (Table 9.3). The first three, which were passed in the first few yeais
after Independence, are modelled on laws in the West and relate to the
' organised sector. They make it compulsory for employers to provide
criches for children below 6 years at the workplace of working women,
and lay down eligibility in terms of the number of women employed.
They also lay down guidelines and rules regarding the location and con
struction of the criches, furniture and equipment, amenities and facilities,
milk and refreshments, etc. They make reference to ‘trained’ workers,
without specifying the nature of training. But even in the organised sector,
there are few such cr&ches, and their quality, is uneven.
As the last three Acts listed in Table 9.3 which relate to the unorganised
sector, are modelled on laws passed for the organised sector, they aie
practically impossible to implement, lienee, llicie are haidly any such
creches. Unfortunately, the Construction Workers’ Act (1996) does not
Worker, Mother or Poth
r ’’
i
Mind Su dinintillmn
earlier Acts, and repeats the
make any significant improvements over
same clauses which have ptoved not to be workable.
tlic Department of Women and Child Development, recently suppoilcd
by funding from (he National Cliche Fund set up in 1994. Though ot igin-
ally intended as a support for women working in (he unorganised sector,
(he scheme has been so loosely defined and js so poorly implemented
Tnblc 9.3
Laws RcInlliiR Crichw
Act
Minimum
Number
ofWmkerx
rnrl‘'ii<M; A< 1.1°-1R
Minimum
Number
nJ Children
and monitored, besides being inadequate in coverage, that it does not
Provision
fulfil its objectives. Its major weaknesses arc:
1. Even after 20 years, only about 13,700 creches (12,500 under the
Crftches for Children of Working/Ailing Mothers and 1.200 under
A suitable room or
to »ms for the use of
cliildicn, with trnined
10
the National Crftchc Fund) catering to about 350,000 children exist
throughout the country. These arc concentrated in certain states,
women in charge
I'lniilntH'iK Ad, 1951
Mines AriV'»52
Beedi and Cigar Woikcis
50
70
-do-
2.
and 6, and very few or no children below 2 arc to be found, even
though this is a most critical need for working tnolheis. The main
Ibmni or looms,
aiocnitics nod
stipci vision
rJo ndninnim
ntnidivi
if" 't
50
reason is (hat. the conception and financing of the scheme is not
ftuoni or rooms nod
tiaincd women in chmgc
conducive to the care of the very young. To eater to the vciy young,
I wo rooms Io be
piovhlcrl for cliildicn.
one piny
nnil<,,,c
or unwilling to provide for infants, while parents ai c naturally i eluc-
more adult workers are required, as well as more and di fferent amen
(Conditions of
l:.m|do)merit) Acl.1%6
('nidiacl l.aln'tir
ities, equipment, food, (raining, etc. Hence, most agencies arc unable
70
(Hrgulntiori &
Al.olilitm) Art.19/0
lolci-slntr Mi|'.»:»n<
Wotkris' At 1.1 '^O
and are to be found mostly in urban and semi-uiban aieas.
In most cases, the crtchcs cater to children between the ages of 2
tanttosend (heirchildren under these conditions. The cicelies thcicfore function mostly like pre-schools, nursery schools, bohvadis,
sleeping loom
do
-do
•<lo-
c(c.
3.
Most of (he crdchcs only function for three or fom hours as in the
ease of/w/icar/i.v/nurscry schools and (hcii timings aie not usually
adapted to those of working mothers except in Kerala and Tamil
Dcfiiled ctitiques of these laws by otgtitiisnlions like Mobile Creches
Wl, , , wil|, consl.ttdion Inbout ituliente tbttl these nre not suhn le
Nadu, where all criches are obliged to function for six hours, usually
from 9.30 a.rn. to 3.30 p.m. or longer. Even here however they ai e
(cient Tor example, in this sector women may be scl T-cmploycd
“cun' wo'k or working for very small establishments, or tn st unbons
not necessarily adjusted to the mothers’ work timings.
4. There is'often no information about which categories of women
w'hete them is no visible employer Io whom the law can be addressed.
working in which occupations use these facilities, since such records
11,is ,0-tkcs a mor-het vol the 'eligibility’ clause without putting anyth mg
arc not compulsory for receiving grants. There is hence little data
available about whether the timings and locations of the cicelies
else in its place, such ns incentives tor small employe.* to group together
suit the mothers.
to ptovidc common services.
5.
The funding, pattern of staffing, and lack of training of creche
workers make it very difficult for these creches to offer good quality
I'ohmtaiy .Sector x
developmental cartf to the children. Besides, there are many other
weaknesses in implementation.
IVorker, Mother or Both
Mina Sn aminalhan
The overall goals of the 1CDS Scheme are:
Private Sector
Unaided creches have sprung up in both lhe voluntary and private sectors.
1.
In the voluntary sector, there arc now a growing number ofcriches,
ten r t by religions denominations, which are not government
"S and me nmstly funded by donor agencies oRen w.th some
contribution ftom the parents. There ts very title
avail.,blc about them, but they ate small, scattered an Io >experImental nature. A few. like the day-care centres ru by th -. Clilirch
of South India, offer a high standard of scrvtces, but they are
,
2
In'themivate sector, creches catering to middle-class working
'von'en I'avcmushioinncd in the largecities, especially the me roootilnn ones t here has been no systematic survey or quanttlativc
assessment of them, nor aie there any regulations or guidelines for
such cicches Some available studies indicate that the quality is
e
................... ..
vidual attention or stimulating act.v.ties for the children. The
om-miscis have no specialised training and little idea about mainHioi,,.. stamlai.ls. I lowever. pa.cms’ needs and demands in eims
of (iming, location, safely ami lhe basic leqmiemcnts of food, toilet,
icsl, sleep, clc., arc well met.
General Services
.1,0 Sixties inc. easing concern was voiced about lhe plight of young
I e n<l ihe possible adverse effects on them of poverty and deprvnthmli was .ealised that the .each of the existing programmes was ...ade
quate to meet the needs of millions of children.
/megra/e./ Child Development Services
Tlli, led to the launching of the Integrated Child Development Services
(ICDS) Scheme, vast in its scope and conception, aiming nt the total
(
1
of vouim children in lhe most vulnerable groups. This
======
.he turn of the century, it is expected to cover the entire country.
• to provide a comprehensive range of basic services to children in
an integrated manner, •
• to create a mechanism at the village level for service delivery, and
• to give priority to loW income groups, inchiding the undcq>rivilegcd
tribes and Scheduled Castes.
Specific beneficiaries include: expectant and nursing mothers, other
women aged 15—45 years, and children of 0-6 years. The package of six
services provided are: supplementary nutrition, immunisation, health
check-up, referral services, non-fonnai pre-school education (for 3-6year-c^lds), nutrition and health education for women and a nutritional
supplement for pregnant and lactating mothers. In selecting project areas,
priority is given to those predominantly inhabited by tribes and Scheduled
Castes, backward areas, drought-prone and nutritionally deficient areas,
those poorly served by-social services, and uibnn slums. The anganwadis
generally run for three hours (four in some states and a full day of six
hours in Kerala and Tamil Nadu), and the pre-school classes only cater
to children of 3+. There is evidence that the services are used only by
the poorest groups.
The scheme does not specifically recognise or cater to the woik done
by women, or their needs or responsibilities as mothers, nor ate the timings
or location of centres geared to the convenience of working women of
any category, to seasonal changes in their work schedules, migration pat
terns, or other work-related factors affecting them. Women are expected
to avail of the benefits at the times and places laid down in the scheme,
and this is widely quoted as a reason for the low availing of supplements
and other benefits by eligible women, ns well ns for the low utilisntion by
children.
The main success of the ICDS scheme has been in developing an infra
structure for child care services, and in areas like immunisation and enrol
ment of children from anganwadis in primary schools. However, it has
had limited value as a support service for women in the unorganised
sector, because ofits fragmented approach which focuses on the delivery
of specific services, and lack of attention to day enre for children.
Day care was not originally a component of the ICDS Scheme and the
need for this service was not recognised until the National Policy of Edu
cation,J 986. The Programme of Action which followed, however, staled
(hat a fixed number of anganwadis (25 per cent) would be turned into
ango/nvnr/r-cum-criches by the year 2000. It spelled out (he requirements
U’orker, Mother or Both
’?2
Mimi Swmiiimiihmi
(bl ttmiiiiig suel. .rr.xnrrnrrr/r-ciHn-ereehes. .. ....... . end of 1996 only 659
C^rr/rnr.r/r-cnni-c.echcs had been app.ovcd for lhe =n,,rC C0“'2’
although 25 per cent would imply nbout 100,000rrrrgmmWi-cuin-crfcc cs
T ibfe 9 4 gives n summary of the nahtre nnd cxlcnt of genera child
care services run by the government or with government md. Though
estates there are a large number of small employers who arc not statutorily
obliged to provide crichcs, nnd hence there have been some voluntary
cooperative ventures run with goodwill and imagination. In Chennai, a
Joint initiative involving a voluntary agency, the Indian Council for Child
Welfare, the employers (Ambatlur Industrial Estate Manufacturers’
Association) and the slate government (Small Industries Development
Corporation) led to (he establishment of two caches for children of women
workers which run a 12-hour day, in shifts, and cater to about 100 children.
The criches are financed by the employers’ association with small contri
butions from the parents, and are staffed and run by the voluntary agency
in accommodation provided by the slate government. There is great need,
though not yet a strong demand, for more such creches, since there arc
several thousand women employed in the Estate. This model could be
replicated in similar situations, but depends on goodwill, since there is
no legal requirement for employers to fund such criches; Recognition
and reward for those who adopt humane employment policies, discounts
and incentives for joint activities, and some investment in advocacy nnd
awareness creafion would go a long way in helping more small employers
to promote criches.
,
thetc is no haul data available it can be assumed that the niolhers o ntnny
(or lhe majority) ofthese children work in the unorganised sector It must
le noted that most ofthese services a. e partial and fall far short ofhohst.c
child care or day care, especially for children below the age of3.
Tnblc 9.4
Cvernee .nukr V.rl....« E.rly CI.II.IIhhhI Edi.c.lhm Scheme. (1996-97)
/Vnmhero/
Centra
Schemes
ICDS (pre-school.C’hicnlinn
ngc group 3
)f,!US
'100.000
(approx.)
5,61'1 projects
lo.sr
<1.615
0.153
l-ntly chihlhood c.hicnlion (l;<T)
(nge group 3 5 ycurs)
Creches mul <l:iy-c:iic cciiircs
14.313
(nge group 0 5 years)
H.ihv.idi^ (age group 3 6 years)
Slnbrloty vtcr hrs (0 (» years)
Nimbtrnf
B'ntfidari'S
(in k fillions)
5.641
5.000
(approx.)
I
Employee-organised
0.342
0.169
0.050
(nppiox.)
111.5
An association of women employees in government nnd public sector
undertakings in Chennai runs a chain ofciglit to 10 cicchcs, housed in the
office buildings in which the mothers work (c.g.t Income Tax, Sect elai ini,
Port Trust/Reserve Bank, etc.). Accommodation, nnd funds for some
initial equipment were provided by the concerned olTiccs, and the cicchcs
are managed by the Women’s Association. The main funding is from the
parents themselves, (hough substantial contributions have been made
and occasionally continue to be made by the employers, depending on the
interest and goodwill of the senior offlcer/heads of the concerned depart
ments. These crtches mostly cater to children below 3, ns those is the 3+
age group tend to be placed in private nursery schools which also function
as day-care centres. Parental needs for safety, cleanliness, food, timing
and proximity are adequately met, though developmental care is often
lacking. However, there has been little recruitment to these cadres in the
last few years, and the average age of the women employees is steadily
increasing. ,Most of them have completed their child-bearing, and with
declining fertility among the middle class, the younger women may opt
to have only one or no child. Because of these factors, nnd the increasing
(R|iproi.)
" I •••HU'-" -•l’ill,I'n
",c 0 3 n,;' g"’"1’"" CUVC,C''ICl?S’ ,C"‘Vi"g
rood supplemroB. iniiintniwlion «n-l hrnllh checks.
... from Hie
So,„re.' Del" o" K US. IK E. c.ichcs end day-cn.c cenl.es .nd ml.u-rfI re from II
|>epB.l.neni of Wo.nc.. nod Child Development In lhe Ministry of IIRD,
Government ortndia.
Innovative Programmes
Sonic innovative sninll-svalc inogtnnnncs offer insights nnd scope for
emulation.
Employer-funded
^7
It or her, Mother or tloth
' 5
imi S(\(iiiiiii(iili(i>i
Central Social Welfare Board cricbes, child care centres have been esta
blished and have been able to gamer some support from the men and
other family members, as well as some local bodies. Though not of high
quality* they are adequate to meet the women’s needs. Their future vinbility, however, can be ensured only if linked in the long term with local
panchayatl rej or a larger umbrella organisation. Intensive efforts are re
quired to get ftindd from various sources, as well as to train and supervise
diflkullics of urban transport, the demand for such crtches seems lobe
on the decline.
■' h
Union-organised
( , eches established by SI-WA fur the children of women tobacco workers,
arc a good example of a service organised by a union for its members.
Launchcdin 1989 and focusing (for the first few years) ontheage group
0-3 it has now been extended to children up to 6 years ofagc. Further,
the workers.
Voluntary Agency-rUn
the management has been taken over by a service cooperative C°"SJ
of the child care workers themselves under the overall umbrella of SEWA.
This the first attempt of its kind in the country, is in itself a very significant.
experiment. Further, the creches arc funded by multiple sources, including
modest contributions from the mothers, donations from philanthropists,
e.nmibutions in kind from panehaynts and local bodies, support from
i„smance ami labour welfare funds and to some exten from the tobacco
factory owners themselves. This last however, is considered a voluntary
contribution for two reasons:
1
2
The women woik both in the tobacco fields and the factories,
accoiding to the season. While crccl.cs arc mandatory under the
I aciorics Act. thcic is no such provision foi agricultural workers.
I hough employers me rcrpiired to piovidc crdehcs nt the factory
.site, (hey arc not obliged to provide funds to any other agency to
cany out that task. I lente, such contributions have to be accepted
ns a gesture of goodwill and cannot be demanded as a matter of
legal right.
Il'onicn n'urkers-organised
■
i
Now opuiatingin four slates (Gujarat, Karnataka, UP and Bihar), Maliila
Samakhya a government-sponsored autonomous women’s organisaliai,
was set up in 1987 with a view to empowering women and education for
equality. Il helps women find time and space to reflect on issues of their
eoncem. oiganisc ami genciatc their own solutions, with support from
I
th hi some areas in Gujarat, rural and tribal women havedefined child
I
caresupportasoneoftheirbasicneedsandhavebytrlalanderrordevijed
strategies to meet this need. Child care support has become a tool for the
empowermenl of these womet’. Currently financed by government through
Mahila Samakhya. staffed by local women, and run on the pattern oft
:
The oldest and best known example is Mobile Caches, a voluntary agency
which has specialised for nearly three decades in running day-care centres
for the children ofmigrant women construction labourers and other casual
workers in the metropolitan cities of Mumbai, Delhi and Pune. Since the
women are obliged to go to work soon atler childbirth and to leave the
children for long hours, Mobile Caches has developed a programme
sensitively tuned to the needs of each age group, from home-like creches
for infants, to play centres equipped with stimulating low-cost materials
and activities for pre-schoolers, to helping older children get into and
through primary school. The workers are trained ns interns ‘on the job’
through a we|l-pla|med programme ofpractical work. Funded from multi
pie sources with heavy contributions from donors, Mobile Crichcs also
gathers some contributions from building contractors and builders. How
ever, for reasons already mentioned (SEWA) these are considered as
voluntary contributions. Because of the complexity of the task, the lack
of readily available trained workers, the high costs and uncertainly of
results due to the heavy turnover of labour, limited cooperation from the
building industry, and othef reasons, this model has not been widely
replicated.
t
There are several other examples in various pai Is of the country which
adjust their programmes in varying degrees to the requirements of women
workers, their children and the local commpniiy.
Conclusion and Recommendations
\.
\
■
This briersurvey ofexisting enlitlements/facilities/services indicates whnt
needs to be done: funding needs to be shared by government (the lion s
Il'orkcr, Molhct, oi Ihilh
I ’6
' 1
Mimi .Shiiinintiiiitiii
share in the ease ul the p<mi), employers, parents and the general public,
while /;/oyrummes should be flexible and need-sensitive, decentralised
and participatory in management. I bus, programmes may be run by
women’s groups, employers, workers, cooperatives, trade unions, volun
tary agencies, local governments, service clubs, educational institutions,
etc. Since the childcare worker is crucial to the success of a programme,
adequate attention should be given to her selection, training, wages,
,
be combined if feasible.
4.i Recognition ofthe child care uvrkeras fuirdling an important social
role and as an emerging category of worker through a programme
, of appropriate and ongoing training and supervision, combined
with adequate wages and reasonable working conditions.
working conditions and motivation.
In the light of these considerations, some basic policy recommendations
me:
1. A Muicrnify and Child Care Policy, n comprehensive statement
which deals with the totality ofa woman’s reproductive Function,
fiom piegnnncy (ill the child is able to go to school. The document
should state the woman '.r riyhf Io health care, wage protection and
adequate working conditions lor maternity, and nt the same time
(he child's riyht (<> survival, piolcction, cate and development. I he
policy slntcmcnl, based on (lie Coiislilnlmii and the Convention on
(he Rights oHlie Child has (hen to be transformed into an interrelated
set of laws and schemes addressing the continuum of maternity
and child care. Learning horn (he experiences oFthc past, somcoF
the present laws and schemes would have to he superseded or
amended, (Hid new ones ptovided.
2. A slnlulory slate-level Maternity Fund which could be drawn upon
to pi o vide every woman, r.cgni dlcss of income, number oFchildrcn
or other considerations, with income protection to enable her to
withdiaw temporarily, partially or wholly From the workForce, in
(he interests of child care. Such a Fund should be Funded From
multiple sources which could include: a cess on employers, regard
less of (he number or sex of workers employed; a percentage of al I
large contracts, especially in trades like building, quarry mg and
conslfuclion; n cess on (he lurnover of establishments; tax-exempt
donations; and insuiancc conli ibtilions fiom woikcrs of both sexes,
fhc Fund could also be enriched by percentage contributions from
sectoral labour welfare funds and insurance funds. The management
of (he Fund should have representatives of labour, employers and
the state, and the procedures should be laid down by this autono
mous body, delinked from the contributors.
3. A state-level statutory Child Care Fund, along similar lines. For
flexibility and nccd-icsponsivcncss, child care services should be
decentralised mid run by a variety of organisations which may be
Rinded by the Child Care Fund. 1 his Fund too should have multiple
sources of raising and developing its income, and autonomy in
action. Both these Funds should be state rather than national level.
for administrative convenience and adaptability. I hey may even
Through such policies and the programmes which would arise from
'them, women will be empowered to effectively and satisfactorily fulfil
their multiple roles, and children may have the chance for a healthy and
hoppy life.
References and Select Bibliography
/,
•
ArulraJ, M.R. and Raja S. Samuel (1995), Dalancing Multiple Roles. Reseat vh
Report No. I, M.S. Swamlnatliaii Rcicnrch Foniidnlioii, ( hriiiiiil
Uliatl, Eta, Mirai Cliatlerjec and Janet Price (1986), *Townids Maternal I’tvtection. Report on Maternity Benefit’, SEWA. Unpublished repot I.
Chatterjee, Maltreyee (1990), Breastfeeding and the Rights of U'oi king Mothers.
Proceedings of the seminar on Promotion of Breastfeeding, Bengal Rural
■Welfare Society.
Datta, Vrlnda (1995), Home awayfrom Home: Family bay Cate in Bombay,
Suraksha Seriei No. I, M.S. Swnminnthnn Research Foundation, Chennai.
Khntakdlna, Margaret (1995), In Sight—On Site: Day Care for Construction
Workers’ Children: Mobile Creches, Delhi. Suraksha Series No. 2. M.S..
Swaminalhan Research Foundation, Chennai.
ICInillar, Mata (ed.) (1992), Whither Child Care Sen iers? ( rntic fbt Wonirn’s
Development Studies, New Delhi.
Maternity and Child Care Support Services (1993). Proceedings of the NGO
Consultation, Proceeding No. 8, M.S. Swamrnathan Research Foundation
.
Chennai. ’• )
Mothers Milk—Every Child’s Birthright I An Appeal to the Government of Tamil
Nadu, tamll Nadu Forum for Creche & Child Care Services (TN-FORCES).
Narayanan, Rama (1997), At What Cost? Research Report No. 2. M.S.
Swaminalhan Research Foundation, Chennai.
)
i
fAfina Sivaminallian
pjiiKilf, Um 5hhlii (II.( hildiriml the I hmm; (ia hr\/br ll'amcn 7< Ihireo IIM(7 a ' ( lulthrn: Self Employcd II omen ’.v dssociaiion, Ahmcdahcd. Surnkslm
Sciies No. 5, M.S. Swainiiiathaii Research Foundation, Cliciinai.
Shram Shakti (1988). Rcpoil of (he National Connuission on Self Employed
Women and Women in (lie Inloiimil Sector. < lovcinmcnt oflndin. New-Delhi.
Slni’li, Dcxlloi (I9/‘O, ‘Legislation in EKAI.AVYA’. The Alohilc I rcvhcx
/Innmil
Si li am, Rnjalaksliinl (1995), Another Kind oj ( hild Care: Alternatives for
Kmol iromcn. Alahila Samakhya Gujarat. Surnkslm Scries No. 7, M.S.
i
Swaminatlinn Research Foundation. Chennai.
Sivaminathau, Mina (1985), Who Cares? A Study of Child Core Facilities for
Low-income Women in India, Centre for Women’s Development Studies,
New Delhi.
(1991). Child Cure Services for Working Parents in India, 11 O, (mimco)
(1993). The Continuum oj A luferniiy and Child Care Support. M.S. Swniili-
nalhan Rcseaich Foundation, Chennai.
(1991), II omen. Woik and lheaxtjeeding. Occasional Paper No. 2, M.S.
Swainiiialhan Rcseaich Foundation, ( henmii.
Swaminathan, Minn and Rama Narayanan (1995), •Impediments to
IJrcas’fccdmg: An Analytical Review’. Paper picscntcd nt the workshop on
F.mpoweimeiH of Women for Breastfeeding, National Institute for Public
Co-opcintion and Child Development.
50
jr vv
INTERNATIONAL LABOUR ORGANIZATION
ILOLEX: the ILO's database on International Labour
Standards
R191 Maternity Protection Recommendation, 2000
Recommendation concerning the revision of the Maternity Protect™ Recommendation. 1952
Recommendauon:R19i
Place:Geneva
□tte'oPadoptcn^Sol'lOOO Display the cootment in: Frencn Scamsh
The General Conference of the International Labour Organization,
Having been convened at Geneva by the Governing Body of the International
Labour Office, and
Item on the agenda of the session, and
~
" Sno determined that these proposals shall take the form of a Recommendation
supplememitlg the Maternity Protection Convention, 2000 (hereinafter referred to as
"the Convention"),
. a.;.-
2000.
Maternity leave
1(1 Members should endeavour to extend the period of maternity leave referred to
in Article 4 of the Convention to at least 18 weeks.
Benefits
2 Where practicable, and after consultation with the representative organizations.of
Of the woman’s previous earnings or of such of those earnings as are taken into
account for the purpose of computing benefits.
3.To the extent possible, the medical benefits provided for in Article 6. paragraph 7,
of the Convention should include.
(a) care given in a doctor's office, at home or in a hospital or other medical
establishment by a general practitioner or a specialist,
(b) maternity care given by a qualified midwife or by another maternity service at
home or in a hospital or other medical establishment
<; (c) maintenance in a hospital or other medical establishment,
(d) any necessary pharmaceutical and medical supplies, examinations and tests
prescribed by a medical practitioner or other qualified person; and
ch - ion Ogp?
06919
f i
(e) dental and surgical care.
Financing of benefits
4. Any contnbution due under compulsory social insurance providing maternity
benefits and any tax based upon payrolls which is raised for the purpose of
providing such benefits, whether paid by both the employer and the employees or by
the employer, should be paid in respect of the total number of men and women
employed, without distinction or sex.
Employment protection and non-discrimination
5. A woman should be entitled to return to her former position or an equivalent
position paid at the same rate at the end of her leave referred to in Article 5 of the
Convention. The period of leave referred to in Articles 4 and 5 of the Convention
should be considered as a period of service for the determination of her rights. •
Health protection
6.(1)Members should take measures to ensure assessment of any workplace risks
related to the safety and health of the pregnant or nursing woman and her child. The
results of the assessment should be made available to the woman concerned/
(2)ln any of the situations referred to in Article 3 of the Convention or where a
significant risk has been identified under subparagraph (1) above, measures should
be taken to provide, on the basis of a medical certificate as appropriate, an
alternative to such work in the form of:
(a) elimination of risk;
(b) an adaptation of her conditions of work;
(c) a transfer to another post, without loss of pay, when such an adaptation is not
feasible; or
(d) paid leave, in accordance with national laws, regulations or pract'ce, when such
a transfer is not feasible.
(3)Measures referred to in subcaragraph (2) should in particular be taken in respect
of:
(a) arduous work involving the manual lifting, carrying, pushing or pulling of loads;
(b) work involving exposure to biological, chemical or physical agents which
represent a reproductive health hazard;
(c) work requiring special equi’ cnum;
(d) work involving physical stra n due to prolonged periods of sitting or standing, to
extreme '.emperatures. or to \ :z'3tion.
(4) A precnant or nursing woman should not be obliged to do night work if a medical
certificate declares such work tc be incompatible with her pregnancy or nursing.,
(5)The woman should retain the right to return to her job or an equivalent job as
soon as it is safe for her to do sc.
(6) A woman should be allowec to leave her workplace, if necessary, after notifying
her employer, for the purpose c: undergoing medical examinations relating to her
pregnancy.
Breastfeeding mothers
S'2
7.On production of a medical certificate or other appropriate certification as
determined by national layv and practice, the frequency and length of nursing breaks
should be adapted tc particular needs.
8. Where practicable and with the agreement of the employer and the woman
concerned, it should be possible to combine the time allotted for daily nursing breaks
to allow a reduction cf hours of work at the beginning or at the end of the working
day.
9. Where practicable, orovision should be made for the establishment of facilities for
nursing under adequate hygienic conditions at or near the workplace.
Related types of leave
10. (1)ln the case of the death of the mother before the expiry of postnatal leave, the
employed father of the child should be entitled to take leave of a duration equal to
the unexpired portion of the postnatal maternity leave.
(2) ln the case of sickness or hospitalization of the mother after childbirthj and before
the expiry of postnatal leave, and where the mother cannot look after the child, the
employed father of the child should be entitled to leave of a duration equal to the
unexpired portion of the postnatal maternity leave, in accordance with national law
and practice, to look after the child.
(3) The employed mother or the employed father of the child should be entitled to
parental leave during a period following the expiry of maternity leave.
(4) The period during which parental leave might be granted, the length of the leave
and other modalities, including the payment of parental benefits and the use and
distribution of parental leave between the employed parents, should be determined
by national laws or regulations or in any manner consistent with national practice.
(5) Where national law and practice provide for adoption, adoptive parents should
have access to the system of protection offered by the Convention, especially
regarding leave, benefits and employment protection.
)
Cross references
Conventions- C103:Ma!emity Protection Convention (Revised), 1952
Supplemented- (C1831 Complementary to the Maternity Protection Convention.. 2000
ILO Home
NORMES home
ILOLEX home
Universal Query
NATLEX
For further information, please contact the International Labour Standards and
Human Rights Department (NORMES) at Tel: +41.22.799.7126, Fax:
+41.22.799.6926 or by email: (infieg(a ilo.org)
Copyright € 1999 Intemar.onai Labour Organizanon (ILO)
Disclaimer
webtnfoianio.or^
ILOLExAheTo's catSSse^o^nttrnational Labour
Standards
C183 Maternity Protection Convention, 2000
»•
come into force.)
ConventiomCI 83
Place.Geneva
Session of the Conference.88
Display the document in: French bpanisn
The General Conference of the International Labour Organization,
Noting the need to revise, WeiordeMo fuEpromote equality
LVtSs
ESses. and the deveioptnent of the proteotton 0.
maternity in nationaltawand practice, and
Noting the provisions of
United Nations
.
Convention on the Rights of the Child (1989), the
Women (1979), the Unit
, Action (1995) the International Labour
Beijing Declaration and PlatformTreatment for Women
Organization’s De5lafa.Uon?t^5 ( 'byour Oroanization’s Declaration on
Workers (1975), the Intemat'^l’-ab0
9,an za Fo|low_up (-jggs), as well as the
Fundamental Princif^es an
gh^^ Recommendations aimed at ensuring equality
S^wsssescn are the shared responsibility of government and
society, and
Having determines that these proposals shall take the form of an internationa!
Convention;
•; day of J-ne of the year two thousand the following Convention
adopts this fifteen: as the l/.3'.e'nity Protection Convention, _0u^.
which may be ci?3
SCOPE
Article 1
discrimination whatsoever.
Article 2
1. This Convention applies to all employed women, including those in atypical forms
of dependent work.
2. However, each Member which ratifies this Convention may, after consulting the
representative organizations of employers and workers concerned, exclude wholly or
partly from the scope of the Convention limited categories of workers when its
application to them would raise special problems of a substantial nature.
3. Each Member which avails itself of the possibility afforded in the preceding
paragraph shall, in its first report on the application of the Convention under article
22 of the Constitution of the International Labour Organization, list the categories of
workers thus excluded and the reasons fortheir exclusion. In its subsequent reports,
the Member shall describe the measures taken with a view to progressively
extending the provisions of the Convention to these categories.
HEALTH PROTECTION
Article 3
Each Member shall, after consulting the representative organizations of employers
and workers, adopt appropriate measures to ensure that pregnant or breastfeeding
women are not obliged to perform work which has been determined by the
competent authority to be prejudicial to the health of the mother or the child, or
where an assessment has established a significant risk to the mother’s health or that
of her child.
MATERNITY LEAVE
Article 4
1. On production of a medical certificate or other appropriate certification, as
determined by national law and practice, stating the presumed date of childbirth, a
woman to whom this Convention applies shall be entitled to a period of maternity
leave of not less than 14 weeks.
2. The length of the period of leave referred to above shall be specified by each
Member in a declaration accompanying its ratification of this Convention.
3. Each Memoer may subsequently deposit with the Director-General of the
International Labour Office a further declaration extending the period of maternity
leave.
4. With due regard to the protection of the health of the mother and that of the child,
maternity leave shall include a period of six weeks' compulsory leave after childbirth,
unless otherv/ise agreed at the national level by the government and the
representative organizations of employers and workers.
5. The prenatal portion of maternity leave shall be extended by any period elapsing
between tne oresumed date of childbirth and the actual date of childbirth, without
reduction in any compulsory portion of postnatal leave.
LEAVE IN CASE OF ILLNESS OR COMPLICATIONS
Article 5
On production of a medical certificate, leave shall be provided before or after the
maternity leave period in the case of illness, complications or risk of complications
arising out of pregnancy or childbirth. The nature and the maximum duration of such
leave may be specified in accordance with national law and practice.
BENEFITS
Article 6
1. Cash benefits shall be provided, in accordance with national laws and regulations
or in any other manner consistent with national practice, to women who are absent
from work on leave referred to in Articles 4 or 5.
2. Cash benefits shall be at a level which ensures that the woman can maintain
herself and her child in proper conditions of health and with a suitable standard of
living.
3. Where, under national law or practice, cash benefits oaid with respect to leave
referred to in Article 4 are based on previous earnings, the amount of such benefits
shall not be less than two-thirds of the woman's previous earnings or of such of
those earnings as are taken into account for the purpose of computing benefits.
4. Where, under national law or practice, other methods are used to determine the
cash benefits paid with respect to leave referred to in Article 4, the amount of such
benefits shall be comparable to the amount resulting on average from the
application of the preceding paragraph.
5. Each Member shall ensure that the conditions to qualify for cash benefits can be
satisfied by a large majority of the women to whom this Convention applies.
6. Where a woman does not meet the conditions to qualify for cash benefits under
national laws and regulations or in any other manner consistent with national
practice, she shall be entitled to adequate benefits out of social assistance funds,
subject to the means test required for such assistance.
7. Medical benefits shall be provided for the woman and her child in accordance with
national laws and regulations or in any other manner consistent with national
practice. Medical benefits shall include prenatal, childbirth and postnatal care, as
well as hospitalization care when necessary.
8. In order to protect the situation of women in the labour market, benefits in respect
of the leave referred to in Articles 4 and 5 shall be provided through compulsory
social insurance or public funds, or in a manner determined by national law and
practice. An employer shall not be individually liable for the direct cost of any such
monetary benefit to a woman employed by him or her without that employer's
specific agreement except where:
(a) such is provided for in national law or practice in a member State prior to the
date of adoption of this Convention by the International Labour Conference; or
(b) it is subsequently agreed at the nationa. ievei by the government and the
representative organizations of employers and wooers
Article 7
1. A Member whose economy and social security system are insufficiently
developed shall be deemed to be in compliance witn Article 6, paragraphs 3 and 4. if
cash benefits are provided at a rate no lower than a rate payable for sickness or
temporary disability in accordance with national laws and regulations.
2. A Member which avails itself of the possibility afforded in the preceding paragraph
shall, in its first report on the application of this Convention under article 22 of the
Constitution of the International Labour Organization, explain the reasons therefor
and indicate the rate at which cash benefits are provided. In its subsequent reports,
the Member shall describe the measures taken with a view to progressively raising
the rate of benefits.
EMPLOYMENT PROTECTION AND NON-DISCRIMINATION
Article 8
1 It shall be unlawful for an employer to terminate the employment of a woman
during her pregnancy or absence on leave referred to in Articles 4 or 5 or during a
period following her return to work to be prescribed by national laws or regulations,
except on grounds unrelated to the pregnancy or birth of the child and its
consequences or nursing. The burden of proving that the reasons for dismissal are
unrelated to pregnancy or childbirth and its consequences or nursing shall rest on
the employer.
2. A woman is guaranteed the right to return to the same position or an equivalent
position paid at the same rate at the end of her maternity leave.
Article 9
1. Each Member shall adopt appropriate measures to.ensure that maternity does not
constitute a source of discrimination in employment, including - notwithstanding
Article 2, paragraph 1 - access to employment.
2. Measures referred to in the preceding paragraph shall include a prohibition from
requiring a test for pregnancy or a certificate of such a test when a woman is
applying for employment, except where required by national laws or regulations in
respect of work that is:- ■
(a) prohibited or restricted for pregnant or nursing women under national laws or
regulations; or
(b) where there is a recognized or significant risk to the health of the woman and
child.
BREASTFEEDING MOTHERS
Article 10
1. A woman shall be provided with the right to one or more daily breaks or a daily
reduction of hours of work to breastfeed her child
2. The period during which nursing breaks or the reduction of daily hours of work are
allowed, their number, the duration of nursing breaks and the procedures for the
reduction of daily hours of work shall be determined by national law and practice.
These breaks or the reduction of daily hours of work shall be counted as working
time and remunerated accordingly.
PERIODIC REVIEW
Article 11
Each Member shall examine periodically, in consultation with the representative
organizations of employers and workers, the approoriateness of extending the
period of leave referred to in Article 4 or of increasing the amount or the rate ofzthe
cash benefits referred to in Article 6.
IMPLEMENTATION
Article 12
This Convention shall be implemented by means of laws or regulations, except in so
far as effect is given to it by other means such as collective agreements, arbitration
s7
-» if\ 1
1
awards, court decisions, or in any other manner consistent with national practice
PROVISIONS
Article 13
This Convention revises the Maternity Protection Convention (Revised), 1952.
Article 14
The formal ratifications of this Convention shall be communicated to tne
Director-General of the International Labour Office for registration.
Article 15
1. This Convention shall be binding only upon those Members of the International
Labour Organization whose ratifications have been registered with the
Director-General of the International Labour Office.
2. It shall come into force 12 months after the date on which the ratifications of two
Members have been registered with the Director-General. 3. Thereafter, this
Convention shall come Into force for any Member 12 months after the date on which
its ratification has been registered.
Article 16
1. A Member which has ratified this Convention may denounce it after the expiration
of ten years from fhe date on which the Convention first comes into force, by an act
communicated to the Director-General of the International Labour Office for
registration. Such denunciation shall not take effect until one year after the date on
which it is registered.
2. Each Member which has ratified this Convention and which does not, within the
year following the expiration of the period of ten years mentioned in the preceding
paragraph, exercise the right of denunciation provided for in this Article, will be
bound for another period of ten years and. thereafter, may denounce this
Convention at the expiration of each period of ten years under the terms provided for
in this Article.
Article 1"
1. The Director-General of the international Labour Office shal notin' all Members of
the International Labour Organization of the registration of all ratifications and acts of
denunciation communicated by the Members of the Organization.
2. When notifyina the Members of the Organization of the regis'-atio- of the second
ratification, the Director-Genera’ shall draw tne attention of the Memoers of the
Oroanization to the date upon wnicn the Convention shall come into 'orce.
Article 16
The Director-General of the International Labour Office shall communicate to the
Secretary-General of the United Nations, for registration in accordance with article
102 of tne Charter of the United Nations, fuli oarticulars of all ratifications and'acts of
denunciation registered by the Director-General in accordance with tne provisions of
the preceding Articles.
Article 19
At such times as it may consider necessary, the Governing Bony of the international
Labour Office shall present to tne General Conference a repor. on the working of
this Convention and shall examine the desirability of placing on the acenda of the
Conference the question of its revision in whole or in pan.
Article 20
1. Should the Conference adopt a new Convention revising this Convention in whole
or in part, then, unless the new Convention otherwise provides:
(a) the ratification by a Member of the new revising Convention shall ipso jure
involve the immediate denunciation of this Convention, notwithstanding the
provisions of Article 16 above, if and when the new revising Convention shall have
come into force;
(b) as from the date when the new revising Convention comes into force, this
Convention shall cease to be open to ratification by the Members.
2. This Convention shall in any case remain in force in its actual form and content for
those Members which have ratified it but have not ratified the revising Convention.
Article 21
The English and French versions of the text of this Convention are equally
authoritative.
Cross references
Conventions: C156:Workers with Family Responsabilities Convention. 1981
Recommendations:R95:Matemitv Protection Recommendation, 1952
Supplemented: (R191)Complemented by the Maternity Protection Recommendation. 2000
Revised: C103:This Convention revises the Maternity Protection Convention, 1952
Constitution: 22:article 22 of the Constitution of the International Labour Organisation
ILO Home
NQRMES home
ILQLEX home
Universal Query
NATLEX
For further information, please contact the International Labour Standards and
Human Rights Department (NORMES) at Tel: +41.22.799.7126, Fax:
+41.22.799.6926 or by email: (inflegrn iio.org)
Copyright © 19Q9 Internationa! Labour Organization (ILO)
I hsciaimer
wcninhi a lit' v”
Legal Intervention for Maternity and Child Care :
Existing Strategies and Future Directions
1*
Amita Dhanda
1
a positive right is believed to enhance the chances of its realisation.
Whilst this paper inevitably delineates the maternity and child care rights protected by.existl"8
legislation's It focuses a lot more on the procedures, which are incorporated within legislation s
foTthe actualisation of theserights. The focus on the procedures is prompted by the fact that it is
these procedures which would show whether and how the guaranteeing of rights within statutes
alters the ground level situation.
II
Upon examining, central and state statutes relating to : maternity relief and child care; the
following models of legislation emerge.
C. Entitlement - Penalty Model
In this model of legislation the statute specifies (a) the beneficiary of the right (b) the statutory
benefit (c) the penalty on non-observance.
The benefit can either be provided in non-negotiable or in exhortative terms Whilst the
provisions of the Maternity Benefit Act have been formulated m ^'^gotiableerms
requirements with regard to drinking water conservancy and medical facilities in the Factories,
Plantations Labour and Mines Act are exhortative m nature
The Maternity Benefit Act applies to every establishment which is a factory, mine, plantation or
circus and every shop or establishment in which 10 or more persons are or were employed on
any day in the preceding 12 months. It guarantees to any woman who has worked in such kind ot
establishment for 80 days in the preceding 12 months the right to claim the benefit.
An employer who infringes the provisions of the statute can be punished with imprisonment for a
period not less than three months and with fine not less than Rs. 2000. An Inspector under tins
Xite can both initiate action for contravention and direct that payments be made Any amount
found due is recoverable as arrears of land revenue
On the other hand Section 48(1) of Factories Act requires that factories in which 30 or more
women were working at any point in the last 12 months provide a suitable room or rooms for the
use of children up to six years of age. The relevant state Factory Rules lay down various
specifications for these creches, be it in relation to their physical condition, hygiene,
personnel or food and recreation.
The consequence of non-observance is contained in a general penalty clause, which provides that
contravention of the Act or Rules could be punishable with imprisonment up to two years and
fine which may extend to rupees one lakh. In case of continuing contravention the fine may
extend up to rupees 1 lakh per day.
Another mechanism for ensuring observance of statutory requirements is registration or
licensing. Without such registration the particular activity cannot be carried on. Infringement of
the conditions subject to which the license has been granted couid lead to its revocation. A recent
example of a statute utilising such a procedure is the Building and other Construction Workers
Act 1996. The Act applies to every establishment, which employs or has: employed ten or more
building workers in any building or other construction work. Section 7 requires such an
establishment to seek registration and section 10 prohibits an establishment which has either
failed to obtain registration"or whose registration has been cancelled from employing building
workers. Yet again section 3 of the Beedi and Cigar Workers (Conditions of Employment) Act
1966 prohibits any place to be used as an industrial premise unless it holds a valid license under
the Act.
(B) Statutes Establishing Welfare Funds
The second mechanism of providing for maternity and childcare is through the various statutes
setting up Welfare Funds. Amongst the objectives for which the fund can be utilised maternity
relief and education of children generally find mention.
Illustratively Section 4 of the Beedi Workers Welfare Fund Act 1976 allows for the Fund to be
applied for the improvement of
(i) public health and sanitation;
(ii) the prevention of disease and the provisions and improvement of medical facilities;
(iii) the provision and improvement of educational facilities;
(iv) the provision of family welfare including family planning education and services.
The Welfare Fund statutes both set up the Funds and provide the structures for their
administration In some statutes the power of defraying expenses, sanctioning loans or paying
grant-in aids is retained by the concerned government with itself. For e.g. the Beedi Workers
Welfare Act 76. In other statutes the disbursement of payments, loan and subsidy is done by a
special Board constituted for the purpose. For e.g. the Building and other Construction Workers
(Regulation
of
Employment
and
Conditions
of
Service)
Act
96.
61
In both kind of statutes however the proceeds of the Fund may be unused to meet tne salaries,
allowances and other remuneration of the members officers and other employees of either he
Board or of the various Advisory Committees constituted by the government to assist it in the
performance of its functions. The Welfare Fund statutes thus do not just provide benefits to
vulnerable populations. They also accord an opportunity to governments to distribute the
largesse of office.
Statutes Mandating Schemes
A third variety of statutes are those which enjoin the state to launch schemes to fitlfil a range of
objectives. Amongst these objectives maternal health and childcare also find mention. For
example section 3 of the Tamil Nadu Workers (Regulation of Employment and Condition of
Work) Act 1982 requires the government to formulate a scheme which makes better provision
for the terms and conditions of employment of workers. The statute in particular requires the
scheme to provide for hours of work, maternity benefit, leave with wages etc.
In most statutes funding source for the scheme is not mentioned. Some statutes however propose
the setting up of a fond to finance the schemes of the statute For example the Kerala Coir Relief
Fund Acf sets up a Welfare Fund and requires a scheme to be formulated to fulfil the various
objectives listed in the statute. Interestingly, whilst the statute speaks of the fond being utilised to
provide for maternity relief, the scheme makes no mention of this objective, even as i . allows for
advances to be obtained from the Fund for medical expenses, higher education of children and
daughter’s marriage.
Difficulties arising from the statutory models
The purpose of delineating the above models is to bring to the fore the strategies available within
the law to provide for positive righto such as maternity and child care. For fuller understanding
the problems arising from each of the statutory models need to be dealt with.
Need to Establish Beneficiary Status
liable wifo foe" Zke'r to sJowtaTshe fotfils foe^a^
ZSttonTf Emp\oeym^t^drSCor^tions^of wT^k^Act tl'982^ defines a "manual worker’- to
mean "a person who is eneaeed either directly or through any agency, in any scheduled
emplovment whether for wage's or not, to do manual work in any scheduled employment and
includes any person not employed by any employer or a contractor but working w th the
permission of or under agreement with the employer or contractor and a person who is given
raw materials by an employer or a contractor for making or altering any work and registered
as such manual’worker under this Act, but does not include any member of the family of
42
employer."
For unorganised workers one method used in statutes is registering the workers with a specified
statutory authority for example Section 11 of the Building ano other Construction Workers
(Rctmlation of Employment and Conditions of Service ) Act, 1996 entitles every’ building worker
resistered as a beneficiarv under the Act to the benefits provided by the Board from its Fund.
The other mode of establishing identity is through identity cards issued by the employer. Thus a
number of statutes require employers to either issue identity cards or to endorse identity cards
given by the registering authority. Thus for example Rule 41 of the Beedi Workers Welfare Fund
Rules 1978 requires the employer to issue identity cards whilst the Kerala Construction Workers
Welfare Fund Act, 1989 provides for employer endorsement. To require the worker to obtain a
staws certificate from a state functionary is another method utilised for establishing identity.
>For example the Kerala Co: Workers Welfare Scheme formulated under the Kerala Coir
Workers Welfare Act 1987 defines an employee to mean any person employed by any other
person or a self employed person in the coir industry’ having an annual income of less than Rs.
3.600 as certified by the Village Officer, Executive Officer of Panchayat, Municipal
Commissioner or Corporation Commissioner of the Area.
This need to establish beneficiary status is common to all statutory models. The burden of
proving such status always resides with the person seeking the benefit. The statutory procedures
have been constructed to ensure that no person should wrongfully obtain a benefit. The effect of
the procedures on a rightful claimant is not a concern Nearly every statute protects statutory
functionaries for acts done in good faith.
This would include making payments to a wrongful claimant as well as refusing statutory
benefits to a person entitled to obtain them. Surely the latter action needs to be distinguished
from the former.
Efficient Inspectorate and Prosecution
The functional efficacy of the entitlements - penalty model depends upon an efficient
inspectorate and diligent prosecution. If there are inadequacies on this score then the guaranteed
benefits in fact reaching the beneficiary cannot be ensured under this model. For example the
Plantations Labour Act 1951 prohibits a court from taking cognizance of an offence except with
the previous sanction in writing of the Chief Inspector. Herein the statutes, which allow
prosecutions to be initiated by trade unions registered associations etc., may be more beneficiary
>friendly. For example the Maternity Benefit Act allows a complaint to be filed by the aggrieved
woman, an office bearer of a registered trade union of which such woman is a member, a
voluntarily organisation registered under the Societies Registration Act or an Inspector. The
Building Workers Act 1996 allows all the above but does not give to the beneficiary a right to
file a complaint. The question however is that do these non-governmental prosecutors possess
the infrastructure to carry out successful prosecutions Absent such infrastructure the inclusion of
the non-governmental prosecutors lessens the penormance pressure on the governmental
functionaries without ensuring that the beneficiaries in
fact obtain the entitlement
Statutory Schemes
In this model the statute only identifies the needs. The actual entitlements and the procedure for
obtaining them are provided in the scheme. There is greater flexibility in this model than obtains
in the entitlement model. This is because a scheme can be altered on the basis of experience
without needing to go back to the legislature. At the same time once a statute recognises a need
and requires a scheme to be made for its realisation, then the formulation of the scheme becomes
a statutory obligation.
For example the recently enacted Persons with Disabilities Act 1995 has relied on the
mechanism of statutory schemes to ensure the realisation of positive rights for persons with
disabilities. It was noted, that in several states the entitlements guaranteed by the statute were
already being provided for through non statutory schemes. The necessary question was that in
the face of these non-statutory schemes what gain if any did the statutory recognition provide to
persons with disability. Statutory recognition of the entitlements has taken the matter of their
grant outside the realm of discretion. Consequently those States which did not have any schemes
prior to the statute have been obliged to introduce them after its enactment. Also those States
which were planning to withdraw some of the non-statutory schemes were prevented from
proceeding further after the statute was enacted. Thus a major gain of statutory schemes over
non-statutory ones is that they introduce a modicum of non-negotiability over the entitlement for
which the scheme is made. Thus-whilst the content of a scheme may alter the scheme itself
cannot be withdrawn.
In so far as the content of schemes can vary from State to State, the statutory schemes model
allows for greater specificity and local appropriateness. Such like particularity is difficult to
obtain in the entitlement penalty model which is constructed in uniform and general terms. An
issue of some significance if it is recognised that planning for maternal health and child care may
need to differ from region to region. The flexibility and particularity advantage of a scheme can
be really obtained if the beneficiaries of the scheme have a voice in its formulation and
enforcement. A role which is not provided in existing statutes. Of course even if such a role is
built into the statute, people's groups would require to maintain pressure on governmental
functionaries to pnc.ro
ensure that thp
the remiirement
requirement of neoole's
people's narticipation
participation is in fact followed.
Child Care Facilities outside the Workplace
The statutory models discussed above have situated maternity relief and childcare in the work
place. And as has alreadv been pointed out the benefit can only be claimed if the claimant fulfils
the statutory definition’ of worker. Thus a woman who has not worked for the requisite
number of days in an establishment cannot obtain relief. Relief is again not obtainable if the
place of work is not covered by the statute. On the application of the Secretary to the
Government of India, Department of Women and Child, the Central Government set up the
National Creche Fund under sections 4 and 5 of the Charitable Endowments Act, 1890 to meet
some of these needs
64
The fund is to pay grants-in-aid to registered voluntary’ organisations, mahila mandals and state
governments, to implement creche programmes in rural areas and slums, for the welfare and
development of children of specified vulnerable groups below five years of age. The proceeds of
the fund are to be also utilised to convert some of the Anganwadis into Anganwadis-cum-creches
and to organise training programmes and refresher courses for creche workers through
specialised training institutions.
Eligibility for financial assistance under the scheme is limited to voluntary organisations or
mahila mandals which were registered as society or trust for at least two years and have a known
record of service in the field of child welfare.
The financial assistance has been fixed at Rs. 18,480/- per creche per annum for voluntary
organisations, state government’s ad mahila mandals running General Creche Centres and at Rs.
8,100/- per creche per annum for running Anganwadi-cum-Crcche Centres. For the initial cost of
establishing a creche a one time non-recurring grant of Rs. 4,000/- is to be paid. For the running
of a General Creche Centre, the government will at maximum provide up to ninety percent of the
expenditure. The remaining sum will have to be borne by the organisation or mahila mandal
itself. The Anganwadi cum Creche Centres are to be managed by the agencies which operate the
integrated child development scheme.
..
Paragraph 19 clarifies that programmes eligible for assistance under the various labour laws will
not ordinarily qualify for any financial assistance under the NCF Scheme.
Upon making enquiries from the NCF it was found that the Fund has a scheme for Ailing and
Working Mothers. In accordance with the terms of its incorporation the NCF does not operate
the scheme itself. It only funds voluntary organisations willing to run the scheme. Organisations
wishing to operate the scheme have to apply to the NCF on a prescribed form. Upon NCF
finding the applicant suitable, the necessary funds for the scheme are sanctioned. It may be of
interest to note that the Sewa Social Security Scheme desires centralized control of Funding and
seeks the creation of local level tripartite Boards.
There is nothing in the aforesaid procedure to show that the applicants have any role in the
formulation of the Scheme or that their experiences are to be accorded any consideration in its
modification.
Other Laws affecting Health and Child Care
Other statutory instruments which significantly afreet the provision of health services are the
statutes introducing professionalisation of services. Each of these statutes introduce registration
and bar the provision of health services by all those persons who do not come within
>its purview. Scholars evaluating health coverage have found professionalisation to reduce
access to health services. Thus Arun Ghosh makes a case for reviving the cadre of less qualified
(and yet trained) medicos (the LMP's of yesteryear) trained nurses and para-medical staff who
may help to improve medical attention and medical care (including ante-natal and post natal
services) in the rural areas.
Child Care
Other than the Child Care provisions discussed above there are cenain other statutory
instruments which assume relevance in the realm of child care.
I
Two central enactment’s, which deal with the issue of institutionalisation of children, are the
Juvenile Justice Act, 1986 and the Orphanages and other Charitable Homes (Supervision &
Control) Act 1960. The first statute is primarily concerned with the procedures for sending
neglected and delinquent juveniles to institutions. The Orphanages Act provides for a system of
recognition for institutions run by private agencies. The certificate of recognition specifies the
minimum standards with regard to boarding, lodging, clothing, saniution health and hygiene
which the recognised home is to fulfil. Infringement of the standards could lead to derecognition.
The two statutes show that the law provides procedure of entry and also speaks of the conditions
under which these statutory institutions are required to subsist. However the question of exit is
tackled in no other way except by the inmate crossing the statutory age of childhood.
These statutes along with the maternity leave, laws do underscore the extent to which child care
is linked up with biological parenting.
Adoption and Foster care as mechanisms of giving children homes outside public institutions
have not really been explored. The maternity benefit laws allow for six weeks leave to a woman
undergoing a tubectomy operation but a family that adopts an infant is not seen to need any
support.
The utilisation of statutes as vehicles of education or for "idea marketing" most dramatically
comes to the fore with the Infant Milk Substitutes Feeding Bottles and Infant Foods (Regulation
of Production Supply and Distribution) Act and more particularly with the Rules which specify
the content of educational material meant for pregnant mothers.
Whether the presumption of the statute that a hard-sell advertising campaign can be countered
with information is borne out needs to be investigated
Panchayati Raj Acts An underlying objective for undertaking this survey of legislation's relating
to maternal health and child care is to find out how a people's participative legislation can be
constructed. To this end the Panchayati Raj Acts both before and after the 72nd Constitutional
Amendment were surveyed.
In the pre-1992 statutes the Gram Panchayats were allocated mandatory and discretionan
functions. Except for the U.P.Panchayat Raj Act 1947 wherein maternity and child welfare has
been listed as a mandatory duty, in all other legislation’s which were surveyed (See list) the item
was termed a discretionary duty. The only difference amongst the statutes was in relation to the
performer of the duty. Thus the West Bengal Panchayat Act 1973 gave the Gram Panchayat a
role with regard to maternity and child welfare centres only if the state government assigned the
same todt. The Bihar Panchayati Raj Act 1947 allowed the Gram Panchayat the choice to take up
programmes in primary education and maternity and child welfare if a majority of the executive
££
I
committee so decided. The Andhra Praaesh Gram Panchayat Act 1964 on the other hand gave
the choice of promoting and developing pre-primary education and establishment and
maintenance of maternity and child welfare centres to the Panchayat.
The Punjab Panchayat Samitees and Zila Parishads Act 1961 obliterated the distinction between
mandatory and discretionary duties and required Panchayat Samitees to make arrangements for
carrying out the requirements of the area under its jurisdiction for maternity and child health. The
above statutes did speak of local participation but the local level institutions were in the main to
function under the supervision of state governments. The people of the village had no
participation rights except to vote for election of the Gram Panchayats.
The post 1992 legislation’s have ushered a change in this direction. The Punjab Panchayati Raj
Act 1994 and the Haryana Panchayati Raj Act 1994 were studied to that end. Certain provisions
of the Punjab Act were especially revealing from a people participative standpoint. Both the
Punjab and Haryana Act require the Gram Sabha to meet twice a year. Failure of the Sarpanch to
convene a meeting results in the loss of office. The Punjab Act mandates the Gram Sabha to:
a) approve the annual budget and plan of development programme and review annual statement
of accounts and annua! progressTeport;
b) to render assistance in the implementation of development schemes pertaining to the village;
c) to identify beneficiaries for the implementation of development schemes pertaining to the
village: Provided that in case the Gram Sabha fails to identify the beneficiaries within a
reasonable
time,
the
Gram
Panchayat
shall
identify
the
beneficiaries;
d) to mobilise voluntary labour and contributions in kind or cash or both for the community
welfare programme.
e) to promote programme of adult education and family welfare within the village;
f) to promote unity and harmony among all sections of society in the village;
g) to seek clarifications from the Sarpanch and Ranches of the Gram Panchayat about any
particular particular activity, scheme, income and expenditure; and
h) to perform such other functions as may be prescribed.
The
Haryana
Act
on
the
other
hand
provides
that
the
Sabha:
(i) shall consider the budget prepared by the Gram Panchayat and the future development
programmes and the plans for the sabha area at its Sawani meeting. The Gram Sabha at its Hari
meeting
shall
review
the
general
progress
of the
development
plans;
(ii) will consider the actual income and expenditure of the Panchayat concerning last financial
year.
(iii) will consider and scrutinize the existing schemes and all kinds of activities of Panchayats;
(iv) shall maintain a complete register for all development works undertaken by Gram Panchayat
or by any other Government department specifying the costs, date of completion of work, name
of assets etc.
(v) will scrutinize the completed works and all kinds of activities of the Gram Panchayat;
(vi) can ask questions to the Sarpanch and Panches of the Gram Panchayat to clarify the
particular activity, income expenditure, scheme and other matters and Sarpanch and Panch of the
Gram Panchayat shall be responsible to its.
(vii) shall locate the places of schemes and other works;
(viii) shall consider audit reports and their compliances,
(ix) shall consider the progress report of every kind of Gram Panchayat works; and
(x) shall exercise and perform such other powers and functions as may be prescribed.
The crucial difference between the two statutes being that the Punjab Act confers the power of
identifying beneficiaries for the implementation of development schemes on the Gram Sabha.
It has been contended that these powers mean little if the meetings of the Sablia do not take
place. Even as the necessity of implementation cannot be denied, it needs to be appreciated that
if the letter of a legislation does not allow for people's participation then such participation
cannot be obtained even when people are active enough to seek it. For example in Patel
Baldevbhai Ambalal v. State of Gujarat (1998 All India High Court Cases 2547) the villagers
protested against the inclusion of their village in a new district. They wanted the state
government should to hear them before taking a decision. The Gujarat High Court held that the
hearing could not be demanded because the Bombay Land Revenue Code did not confer any
such rights of hearing finding. The scenario as sketched above dies show
l)The statutory ordering of maternal health and child care is at present workplace linked. Even in
the workplace statutes the benefit provided has not moved beyond, paid leave for child bearing
(maternity benefit) and securing of a place within the workplace where children can play be
nursed and cared. There are differences no doubt amongst different statutory schemes as to when
a women worker is entitled to maternity benefit and when a factory owner is required to establish
a creche.
It is significant to note that the setting up of creches at all times has been linked to the number of
women workers in a factory, plantation or mine. Over the years the number of women workers
which necessitate the fulfilment of the creche requirement has continued to climb down. It has
not however despite the Shram Shakti Report been unlinked from the number of women
workers. Only the Inter-state Migrant (Punjab) Rules required a?, existing facilities to provide for
creches if they had 20 workers and all new establishments to make such a provision as soon as
they had 20 women workers. The renewed mention of 6 new women workers in the latter part of
the Rule causes one to wonder whether the deletion of the word women in the former part of the
rule is only a printing error. Be that as it may this is the onfy rule which (even if particularly)
makes the provision for creches a gender-neutral exercise.
2) The provision of benefits occurs on a philosophy of largesse and a psychology of suspicion.
The statutory’ procedures are geared to weed out wrongful claimants. There is no urgency to
ensure that rightful claimants get their just due. Furthermore the statutory' system of defining
terms has an automatic consequence of leaving out those who are not included within a
definition. Infect such a consequence is often expressly desired from statutory interventions. For
example the Maharashtra Manual Workers Act expressly speaks of devising procedures so that
those who are not covered by the statute do not obtain benefits from it.
(.8
If each of the above mentioned models has inadequacies and is problematic then am 1 sayine that
law has no role to play in the campaign. Since an impression to this effect seemed to arise when
the draft paper was presented at the National level consultation earlier in the year, I think certain
clarifications are in order
This paper is not advocating eschewal of law in the campaign. Rather it is detailing out what are
the items available on the legal menu card. This is to underscore that law is not an item of
unvariegated uniformity. Use of law would mean utilisation of one of these statutory models
either separately or together depending upon what kind of legal support is required for which
part of the maternity and child care charter of demands. I found Mina Swaminathan response at
the consultation helpful when she took the line that different demands in the charter need to be
realised through different statutory models. Thus illustratively the regulation of pre-school
education could be through a variant of the entitlement penalty model, whilst maternity benefit
for women not covered by the existing labour laws could be through a fund and arrangements for
creches could be through schemes.
The presentation of the menu card was aimed to facilitate choice, it was also motivated by the
desire to spur law reform. Law reform would be required at two levels. One level would require
the ideology of existing statutory regimes to be interrogated and the other would need changes to
be introduced in the substantive provisions. A people-participative law reform exercise should
demand a dismantling of the statutory suspicion of claimants and insist upon a statutory
recognition of the dignity of claimants. The grant of state support should not be at the cost of
dignity but in furtherance of it. Statutory duties should be placed on state officials to seek out
claimants, inform them of their statutory entitlements and provide for the same. Failure to fulfil
any of these duties should invite penalty. There should be a shift in statutory leanings and the
emphasis should be more on ensuring that a rightful claimant gets her just due, than on that a
wrongful claimant does not obtain the same. In a democratic polity, state officials are
representative/guardians of the people. It is about time that respect for the ‘real masters, is built
into governmental functioning.
Alongwith a system of accountability the other major method of achieving this is to require by
law the mandatory participation of people in policies affecting them. In a number of statutes (for
example the Environment Protection Act, the Drugs and Cosmetics Act) there is a procedure
publishing draft notifications, schemes and inviting objections/suggestions from the people. The
final notification/scheme etc., is then to be promulgated after duly considering the objections,
suggestions of the people. This requirement is being fulfilled today in form but not in spirit. The
notification/scheme is published in the official gazette with requirement of submitting
suggestions, responses within a period of 30 to 60 days. The Gazette is not a document which is
easily available to law persons let alone lay ones Consequently, once the statutory period of
awaiting objections/suggestions is over, the notification which was at first published as a draft
one comes to be notified as the final notification. The authorities are under no obligation to
inform whether they have received any suggestions/objections and if yes what have they,done
with those responses. If the icsponses received from the public are not incorporated within the
tinal notification, then what are the reasons for not doing so
It ahs also been found that wherever stakeholders are aware and organised the requirement of
pre-publication provides a significant opening for negotiation Illustratively both the
pharmaceutical companies and woman groups have effectively employed this procedure in the
context of the Drugs and Cosmetics Act. Consequently, if after a campaign on child care rights,
the requirement of pre-publication is incorporated as an integral component of the Maternity and
Child Care Law the usefulness seems self-evident To further enhance the effectiveness of the
procedure it seems appropriate to statutorily provide that the participation of the people should
be obtained by u'ing the mass media A publication in the gazette alone should not be accepted
as adequate The statute should further provide that whenever the authorities do not accept the
suggestions/objections of the concerned constituency they should be under an obligation to
supply reasons for the same.
.
On the substantive level, the law reform agenda would need to rectify some of the evident
anomalies in the existing statutes. The following are some change which are being suggested :The requirement for creches should depend upon the number of workers and not upon the
number of women workers in an organisation. For example the statutes making provision of
creches should state that creches shall be provided if the establishment has 30 workers and not as
is the case at present that creches shall be provided if there are 30 women workers.
All statutes which grant benefits to workers in the unorganised sector require the worker to prove
her status which considering their illiterate or neoliterate status and makes out a pnma facie case
of the same the burden of proving that the person is not a worker should be on tne employers or
the concerned authorities. Absence of identity card, or name on the muster rolls should not be
conclusive of the matter.
At present no child care leave is granted even when an infant is taken in adoption It is therefore
suggested that a person should be eligible for maternity leave upon adoption of a child less than
six months old.
Dais midwives have no lecal status even as they are major health care providers this demoralises
them and creates a human resource crunch. It is therefore suggested that para professionals be
recognised as essential providers of maternal and child health care
A number of statutory funds have been established for the welfare of different constituencies e.g^
manual workers, construction workers etc. These workers have no role in the management of
these funds and very often are not even contributories to it. It is therefore suggested that
beneficiaries of Funds should be involved in their management They should also as a general
rule be contributors The rule of percentage from earnings should be made applicable as being
most promotive of paritv between contributors. Other than the above, one issue which generated
a lot of discussion at the consultation was the extent to which the campaign would be furthered it
health and education were recognised as fundamental nghts in the Indian Constitution In my
draft paper, I had counselled against the strategy primarily on legalistic logic
The logic went as follows: Article 21 of the Indian constitution guarantees the right to life and
liberty The Article provides that no person shall be deprived of life and personal liberty. The
Article provides that no person shall be deprive of life and personal liberty except according to
u.e procedure established by Law. Soon after the constitution was brought into force, the Indian
Supreme Court interpreted this Article to say that whenever the State wants to take away from a
person his life and liberty, a legislation has to be enacted to do so This life and liberty was also
interpreted in a limited manner to only mean freedom of movement and freedom from
confinement. Over the years however, the court has started to expand the scope of the right to
education and right to health have been incorporated within .Article 21. This incorporation started
to reduce the importance of the distinction the founders of the Constitution had introduced
between directive principle and fundamental rights. The founders had made the fundamental
rights, which primarily contain civil and political rights, to be judicially enforceable and
directive principle, which encompassed social economic rights, to be non justiciable. The
vampaign for recognition of health and education as fiindamental rights, I felt would only cause
and intellectual resurgence of the thinking which stresses on the non-justiciability of the socio
economic rights enforceable by expansively interpreted Article 21' would get negated.
This position, I was forced to reconsider on a close scrutiny of the 83rd Constitution Amendment
ill and upon examining the governmental response to the demand of making education
fundamental right.
i ne 83 constitution Amendment Bill has made ever effort to keep governmental responsibility
at a minimum. Whilst Article 45 of the Constitution requires the State to provide free and
compulsory education upto the age of 14 years, the Bill grants the right to the 5-14 years age
group. Thus the educational needs of the 0-5 years has been taken out of the rights conspectus.
Vhilst constitutional jurisprudence has been expanding the authorities amenable to the
lundamental rights regime, the Bill has circumscribed the rights.
These efforts at controlling the expanse of the rights to education alongwith the implementation
anxieties expressed by government officials caused one to appreciate that the implementation
agency i.e., the government and its officials the distinction between directive principles and
fundamental rights has been of vital significance. In the face of such a perception the declaration
uy the Supreme Court or various socio-economic entitlements enshrined in the directive
principles and fundamental rights remains only of symbolic significance to the government
authorities. At the same time when the campaign for making education and health fiindamental
rights is launched it would be necessary to ensure that the rights are recognised in their full
panoply . Absent such full recognition a judicially converted directive principle is preferable to a
legislatively truncated fundamental right.
•
In conclusion 1 only wish to reiterate that this paper is an effort at promoting informed legal
auvocacy and to that end it deliberates upon both the potential and the limitation of law. We
wouid need to drawn upon both in planning our fixcure strategies in the campaign for maternal
health and child care
7/
Annexure - V
ILO and MATERNITY PROTECTION
2000
> Convention No. 183
and
> Recommendation No. 191
- Ms. Jyoti Tuladhar
7^
k-
LLO1 STAjND A
J.
■;
ON
on U1 it.' <C T IO
TERNITA r.K
j Maternity Protection Convention, 1919 (No.3)
h;.
j Maternity Protection Convention (revised), 1952
(No. 103)
_j Mateerni ty Protection Convention, 2000 (No. 183)
J Maternity Protection Recommendation, 1952 (No.95)
j Maternity Protection Recommendation, 2000
(No. 191)
r,:.
I -
** •
C iLO, 2000
LCJ.. -
3
) 0
.Li. ■
L'
WHAT IS MATERNITY
PROTECTION?
s Leave
a Cash benefits
□ Health protection
a Employment security
a Non-discrimination
11.(J, 2000
7^
SCOPE
AH employed women
a Full-time and pait-time workers, including
home workers
!
2 Women employed in atypical forms of
dependent work.
I
% Limited exclusions are permitted
© ILO, 2000
7S'
I
I
LEAVE
I
14 weeks
6 weeks’ compulsory postnatal leave, unless
otherwise agreed at the national level
Additional leave in case of illness,
complications or risk of complications.
I
ILO, 2()()0
7^
1'1
1^1
’J
a No less than 2/3 of a woman’s (insured)
earnings or comparable coverage
a Qualifying conditions must be met by a large
majority of employed women.
3 Prenatal, childbirth and postnatal medical care.
a Hopitalization care, when necessary.
LO, 2000
FINANCING OF BENEFITS
T Social insurance or public funds or in a manner
determined by national law and practice.
Employer liability is only permissible, if
5
a) employer agrees
or b) in force nationally before 15 June 2000,
or b) there is tripartite agreement thereafter
© ll.o, 2000
7/?
EMPLOYMENT
SECURITY
/
h Protection from dismissal
□ Burden of proof is on the employer
□ Right to return to the same job or an
equivalent one at equal pay
© ILO, 2000
7?
1
I
I
EMPLOYMENT
SECURITY
No dismissal during:
a Pregnancy
3 Maternity leave
i Leave for maternity-related illness or
complications
a A period following the woman's return to work
Except for reasons unrelated to maternity, i.e.
pregnancy, childbirth, nursing etc.
(
I
© 1L0, 2000
0
I
NON-DISCRIMINATION
3 Members must take measures to ensure
that maternity is not a source of
discrimination in employment.
3 No pregnancy testing, except when legally
prescribed to protect health
© 1L0, 2000
81
HEALTH PROTECTION
a A woman is not obliged to perform work
prejudicial to her health or that of her child.
© ILO, 2000
32
i
BREASTFEEDING
s Periodic breaks or a reduction of hours of work
in order to breastfeed
a Nursing breaks (or hours) are to be counted as
working time and remunerated
I
© ILO, 2000
L /2
. .
.it
i •••- 'f
I ' : i •' i 1 J
O
'a
LV i
'-i .L'.'i
1 ;i
IL. -a
■
■
-
;•■
■’
- .x.
.4. •'
c.-- 'lr ■ L0T:' J ' .
W
“’L-
>
<’
-
0 -n ; .. ••
■ j <7
Detailed Guidance Concerning:
s Leave and Benefits
si Health Protection
a Breastfeeding Mothers
s Related Types of Leave
b^f
l
i
--J
HEALTH PROTECTION
I
i
i
I
I
I
i
i
O 1L0, 2000
s Workplace risk assessment
s Measures to eliminate risks, or adapt a woman’s
working conditions, or provide a transfer to safe
work, or paid leave if necessary
*
■
'
•>
r
•
.
•
.
•
. ■
3 Right to return to her job or an equivalent one
wren it is safe to do so.
■.
US
1
PARENTAL LEAVE
8
It'l
® Leave and benefits for either parent after
maternity leave to be determined at national
level
T
□ Leave, benefits and employment protection for
adoptive parents.
© 1L0, 2000
STRONGER PROTECTION
® Wider scope
ti Longer maternity leave
□ Non-discrimination measures
□ Health protection and breastfeedin
a Cash benefits
33 Guaranteed right to return to job
a Periodic review
© 1LO, 2000
GREATER FLEXIBILITY
1
I
Methods of financing
a Computation of benefits
Z]
-’I
ILO, 2000
Provisions for developing countries
Protection against dismissal
<
Annexure - VI
Maternity Entitlement for Women in the unorganised Sector
- Ms. R. Geetha
Maternity Entitlement •£ 2 basic right of all women workers, yet
rarely realised in the unorganised sector.
The unorganised sector er/ploys 91% of labour force and majority of
the women labour in the country, and with globalisation contracting out and
proportion of unorganised labour have increased.
We need to recall that Maternity Benefit Act enacted in 1956 not
only made it possible for women workers to realise the entitlement but at the
same time led to reduction of women workers from regular payroll in the
textiles sector over a period of time.
The unorganised sector includes agriculture construction, handlooms,
self employed women vendors, domestic workers home based sector etc. In
agriculture and construction there is no constant
employer-employee relationship. Where workers have regular employment under
. the same employer, mejre often it is bonded labour, widiout work records and
paid less dian minimum wages etc. In die other sectors such as home based die
system of contract and subcontract has made the situation of women workers
vulnerable.
Invisibility, vulnerability and total lack of work records have
created die situation wherein a mere conferment of entitlement dirough a law
making die employer liable to pay die maternity benefit to workers, will not
work. It will become a legislation similar to equal remuneration Act,
unimplemented and unimplementable since the mechanism for implementation is
only a process of complaint, inspection, prosecution and leading to
victimisation.
The alternative to this kind of legal fonnat is the Tripartite
Boards which would take care of employment, wages, social security including
maternity benefit, welfare measures.
Since Government maternity hospitals function with lack of medicines
and rampant corruption, mother and child do not get die care that is due to
them. And the difficulty in the last month of pregnancy and the need for
breast feeding die child for at least six mondis lead to PENJJKY of the women
workers. lndebte.dness to the empioyer/contractor in case of regular
employment and in cases of changing employer, pa wiling of vessels etc to pawn
brokers are die normal practices to meet the expenses. The support system is
normally die woman's and sometimes her husband's family.
In Tamil Nadu Mudiulakshmi Reddy Scheme implemented by State
Government provides Rs. 500 for woman workers and the entire system of
cert.ticates and ensuing corruption, the womenworkcr gets the money after a
year after delivery and normally 200 to 300 rupees.
I
n'°vcinc"t ofcc^trLiction uoikers had led to the enactment
of Tamil Nadu Manual Workers Act in I °S2 and formation of Tamil Nadu
construct.on Workers Welfare Board, in [005 f,rst in the ci[ics of Chennai,
urai and Coimbatore and covering the entire state from IQ07 The
registrat.on of workers has reached 3 lakhs and women number Q0.C00 ie 30%
o. the lota, number of registered workers.
Tliough tlie Tamil Nadu Manual Workers Act provides for
S alt0" °f emp!°a;e?/nd W°rkerS’ recru^^nt and disbursement of Wages
meant to " y t
the B°ard- dle Welfare Board "> d’e scheme
e ef a
reS'ster workers and provide ESI, Pension, Creches and accident
lol J;" P6|
°rif" SCheme' Als° dle Act was a"lend^
include
„nrt- °n °f CeSf,0f nOt more dla" 1% over estimated cost, before plan
•
’
inrr
C
C0"CC'Cd W3S ° 1 %
d,C i,litial 3 YcarS and
increased to O.j /0. Levy is not collected from Central Government
ceOssStarndCtX'S'
dl°UslLCentral Act «>Pulates not more than two percent
and I /o notified. State Government is unwilling to increase the cess.
we • 1
iX -7
t0
asitation of construction workers, maternity benefit
WaS ,n‘tlally Rs- 1000 a,,d later increased to Rs. 2000 and
"" T imp“'■3 ”
There are three problems with die existing scheme: A woman can
apply only after completing one year after registration
applris,
-J ... —___
metnod to deny die entitlement to die woman wnri-=., Tk:~n.. .1
iantum js
i.e. minimum wage, multiplied by 120 days. Also
s “ ?.»“,c vohmta Fundamenta!!>'such a Welfare Scheme since it is based on
Ninnan Mazdoor Panchayat Sangani is raising its voice to remove
the one year stipulation, two child
norm and to increase the quantum as well
as to change the scheme based on
compulsory' registration, and also for
decentralisation.
■
. I-/
Now in Tamil Nadu, Welfare Boards have been formed separately for
Agricultural Workers, Weavers, Palmyra woikci^. AuiMr-. I lair dicsscrs. Washer
men, Auto and Taxi drivers, Tailoiimg workcis and cue Boaid for 4X calcgoiics
of Manual Workers, dhe scheme for maternity bene?’: enxisaged the same in
jhese schemes as in dye case of cons-niction
Initially
T amil Nadu Manual Workers Welfare Board was fc::ncd with a scheme including
maternity benefit of Rs. 1000 with a two child norm Maternity benefit has
been now raised to Rs. 2000 dirough CM’s announcement, yet to be notified.
There is a question of fund and there is a need to collect cess
from the employers which is possible for many occupations and also a small
percent as sales tax. Also die State Government must make budget allotment
for the unorganised labour.
In Kerala too there is a Construction Workers Welfare Board
i or med in 199 I which provides for metemity benefit of Rs. 3000 to women
labourers who arc registered with die Board and cess of 1% is collected from
various constructions. There are similar Boards for other unorganised labour
segments and maternity benefit is a coinponent of die Welfare activities.
At the national level two Central laws for construction workers
enacted in 1996 are now leading to formation of Welfare Boards and collection
of cess by State Governments all over the country. It had taken a long
struggle by National Campaign Committee for Central Legislation on
Construction Labour headed by Justice V.R. Krishna Iyer from 1985 to get the
laws enacted. The law provides for Construction workers welfare Board while
maternity benefit is not mentioned as one of the benefits.
So NCC-CL and Ninnan Mazdoor Panchayat Sangam in every' State is
struggling to get maternity benefit included in the Rules and for proper
implementation through the Welfare Board.
NCC-CL and NMPS have been agitating for amendments in die
Central Act on the basis of model Bill and Scheme drafted by NCC-CL which will
ensinc compulsory registration, regulation of employment and wages through die
Board, Provision of ESI, Pension etc and also proportionate representation of
women on the Board.
Beedi workers are covered by Beedi Workers Welfare Fund Act
which piovidcs for only Rs. 2G0 as maternity benefit with a two child norm,
die time taken is normally one year after delivery. The fund is not managed
by the tripartite Welfare Board. Though the Rules pic'.idc fora maternity
centie in an area with over 500 women beedi wotkeis. this is not a reality due
to lack of funds, interest etc. Hence prevision of ESI fcr unorganised women
labour is a very important step forward
Ihus tripartite Boaids must be formed for each sector in every
state and ESI implemented for the maternity entitleme,u to reach the women
unorganised workers in the country.
Annexure - VU
Mobile Creches Interventions: A Challenge
- Ms. Mridula Bajaj
Arrangements for safe
delivery
- sterilized kit
- accessing govt.
facilities
- counselling
Doctors visits
- Ante natal check ups
- Post natal check ups
- Immunization
1 The Creche
Development
care of older
children
responds to
rights of mother
\ and child
Care of infant
Safe, protective
environment
Nutritional
■Awareness and
supplements
- Pregnancy
- Location
- Weaning
. Facilities for
1 "Breast feeding
Provision of creches at work sites is stipulated under
The Builders and Construction Workers Act 1996.
The Gap - Rights of the worker
- Protection of wages
- Protection of work
Implications for amendment
72
The Mobile Creches experiences at Construction Sites.
© Evading the law due to number stipulation
• Evading the law due to workers categories - women
• Evading the law due to location stipulation- off site
labour camp
Creche ? Custodial care vs. development care
• Lack of space
• Lack of infrastructure support
• Lack of personnel
• Lack of training
• Lack of resources
• Lack of commitment
Implications for strengthening implementation mechanisms
73
Roie of key players of the Construction Industry
Making Maternity Entitlement a reality
Architects:
• Incorporating creche into basic design and plan for project
quality
Builders and Developers :
• Commitment translated into clear policy guidelines
Government:
• Understanding labour welfare laws, plugging loopholes and
ensuring implementation
Contractors:
• Accountability and responsibility for safety, welfare and
quality
Project Managers:
• Providing administrative and infrastructural support
Site Personnel:
• Providing co-operation
Community :
Awareness of Rights' Entitlements,
G
Pressure demand of Rights
e Realization of importance of Health Support and Early Child
care
Major Obstacles in implementation within the existing
legal and policy framework
• Lack of Sensitization and Awareness - Concept of
Social Responsibility
• Lack of commitment - Allocation of resources
* Lack of mechanisms - Allocation of personnel and
systems
• Lack of knowledge and experience
• Lack of trained personnel
• Lack of easily replicable models of partnerships
I
Towards Universalization of Maternity Entitlements
♦ Provision of creches/daycare centres for all working
women (through expansion & modification of ICDS)
♦ Encourage community based/alternative models of
childcare
♦ Capacity building, Training and Adequate Remuneration
of Childcare Workers
♦ Setting up of Welfare Boards
♦ Maternity and Childcare Cess on all Employers (shops
and Establishments, industry, agriculture) irrespective of
number of employees
THE STORY OF RAMVAT1
G
No provision for Ante-natal checkups
G
Lack of facilities for deliver)-
® Neglect of older siblings - lack of creche facility
• No maternity leave
• No Facilities/ Provisions for Breast feeding and
infant care
• No Provisions for post-natal check ups/ support
• No Provisions support for immunization
Mnnexure Alternative Models for legislation and Implementation
Structur es for Maternity Entitlement
- Ms. Mina Swaminathan
Problems and Queries
Eligibility
What if child dies ?
Is mother entitled ?
What if mother dies?
Is surviving parent entitled ?
What about adoptive mothers ?
fathers? upto what age of child?
Identification
Who will certify in the case of
(a)institutional and(b)home deliveries ?
Who will define poverty ?
how frequently ?
Who will certify poverty ?
Will any one of multiple
authorities be acceptable?
Who can apply, register, litigate,
seek redress, file complaint ?
Implementation
Wrongful claims
Corruption, misuse
9^
Access
Multiple access -through several
agencies
Govt. Dept.
Panchayat
Office 3
ICDS
Centre
Health
Centre
Bank
Multiple
chanels I
Post Office
Ration Shop
Hospital -
Legislation - How ?
Three models of legislation
1. Entitlement - penalty model
2. Statutory fund model
3. Statutory scheme model „
Reasons
1. Ease and simplicity of operation
2. Rudimentary schemes already exist
3. “Fall-back” or safety net approach
4. Non-conflicting
5. Non-discriminatory
Legislation - for whom ?
For all women
Article 42 - The State shall make provision
for securing just & humane conditions of
work and for maternity relief.
No discrimination by
> Age
> Marital status
> Work status
> Number of children
> Income status
> Biological link or
> Any other
Exceptions:
Only for below poverty line ?
lol
Legislation -why 1
For the child
Because the child's survival, growth and
development requires
> exclusive breastfeeding and attention
for the first four-six months of life
For the women
Because the mother requires
> physical rest and relief from other
tasks
> nutrition and healthcare
> opportunity to breastfeed and care for
child
> freedom from mental tension and
anxiety about finances and resources
For both
> so the mother-child pair requires close
and continuous proximity to each
other during this crucial period
CH ■ '
■
}J
v ---
Legislation - what ?
Objectives
> To provide women financial support for
childbirth, childcare and breastfeeding in the
first few months of the child’s life, as well as
rest and recuperation for the woman, and
thus promote health of mother and child
> To recognise the woman’s reproductive
role and compensate her for her
unavoidable absence from the work force
for a certain period.
> To do the above, the law must provide
every woman with an entitlement to (four or
six) months financial support,calculated
according to certain fixed principles.
/ 0
Funding
All four levels
Centre
I
State
I
District I Municipal
(Ward) Local (Panchayat)
Sources
!
Employers i Individuals
\
/\
State
1
Participation
Mechanisms for participation, feedback, monitoring
Represented by
For Whom
I I
1. Women working in
institutions
! Unions, or elected
i representatives
2. For all others, selfemployed non-employed,
unpaid workers
I Womens organisations, clubs,
associations, panchayats,
municipal, councillors
Grievance Forums
Urban
Rural
Local group set up
by Municipality
Gram Sabha
Annexure -]X
Maternity And Child Care Entitlement
in Law - A Bird's Eye View
(Mr. Bikas Oas)
From the bare reading of the Constitutional Provisions &. laws concerning
maternity relief and benefit, it seems that the roiiowing legislations are having
bearing on Women Worker in the informal sector in some form or other, fhese
provisions can effectively fit into the advocacy process for deriving entitlement
of women workers engaged in informal sector, the present position of law does
not seem to be equally responsive towards the security of women working in the
informal sector.
The Indian Constitution in Article 42 ( in the Chapter of Directive Piinciple Of
State Policy) lays down the following provisions
ART: 42 -.PROVISION FOR JUST AND HUMANE CONDITIONS OF
WORK AND MATERNITY RELIEF- "The State shall make provision
for securing just and humane conditions of work and for maternity
relief/’
The provision indicates that it is the State s obligation to create social
atmosphere befitting human dignity for citizens to leave in . The judiciary in India
uphold in it’s magnanimity the constitutional mandate by obseiving that
principles contained in article-42 may benevolently be extended to the living
conditions in jails. (D.F d.Pattnaik vrs. State of Andhra A.I.R. 19/4 SC. 2092).
Thus nothing can prevent the state from extending the benefit to the informal
sector if state makes its policy in furtherance to the provisions contained in
Article-42. Such a discrimination in favour of women can not be held as such and
this differential treatment towards a weaker sections of the society is a positive
discrimination within the meaning of Article-15(3) of the Indian Constitution. In
fact the whole sentence in article-42 gives an impression that in order to ensuie
just and humane condition of work, it is necessary to have special provision of
maternity benefit.
PROVISIONS
OF
LEGISLATIONS:
MATERNITY
BENEFIT
IN
DIFFERENT
(1) The Maternity Benefit Act is one such legist::on which declares the policy of
the State in-furtherance of the provisions contained in Article-42. However,
it can be found in a .balanced interpretation that there was a shift in the
intention of the legislature while enacting the Maternity Benefit Act which
replaces the constitutional terminology maternity relief. Thus there is a need
to have a clear understanding of both the terms. In Board of Directors Vrs.
Mahammad Khan it was explained that benefit means an advantage and
i
I includes monetary as well non-monetary advantages or services. The Right
in the form of money or services enjoyed under Social Security Schemes or
Insurance Scheme can be considered as benefit. Benefit is something that
promotes well-being . It is an advantage, useful aid or help. It also means
financial help in times of sickness, old age, unemployment and other cases of
un-deserved want. The above meaning of the term benefit has got its
i
expression.in the Indian Constitution in Article-41 where public assistance in
cases of unemployment, old age, sickness, disability and other cases of
undeserved want has been promised as benefits. The meaning of the term
f ;. Relief, on the other, hand, includes steps for lightening or mitigating or even
r- removing .■■ . any burden, discomfort, evil, pressure or stress especially
1=; deliverance from a siege. Maternity Relief in Article 42 can be understood
I from this sense. /
I
V j/J The Maternity Benefit Act only regulates the employment of women in certain
establishment for certain period before and after child birth and provides for
maternity benefit and certain other benefits. An establishment has been
defined in the act as (I) A Factory (li) A Mine (lii) A Plantation (Iv) An
gxh Establishment wherein persons are employed for the exhibition of Equestrian,
Acrobatics i And other Performances (V) An Establishment to which the
Provisions of this Act -have been declared to be applicable. However the
^ recent decision of the Supreme Court of India in Municipal Corporation Vrs.
Female \Workers (Muster Roll) is basically a verdict in favour of casual
workers> or women who have been included under muster roll of. any
establishment like ? Municipalities. Thus, the Hon’ble Apex Court only
i ■■ •:- vindicated the entitlements of workers in the muster roll of an establishment
• to get the benefit of the act. The important aspect of the decision of the Apex
i •. Court is that the Bench took an egalitarian
anefr expansive view while
interpreting article-42. The emphasis was not only on the term Maternity
Relief but more on the phrase human condition of work. The Bench also
resorted to Universal Declaration of Human Rights and Convention on
Elimination of All Forms of Discrimination Against Women. We may add here
that for ante-natal and post-natal rights of women and children the & 26 lay
down arrangement of social security measures by the State Parties. Thus the
Judgement of the Apex Court is a land mark verdict which can be extended to
various spheres of the informal sector where more than a required number of
women work and where the Maternity Benefits are apparently needed. The
accessibility to various facilities and services has to tackle the dimensions of
space and distance as well as the availability of the appropriate number of staff
for this also in Article- 18 of CRC there is mandatory provisions for the State
Parties.
In the Proviso to Section 2(b) of the Maternity Benefit Act, 1961 It was
mentioned that St^te Government may, with the approval of the Central
Government, afte giving not less than 2-months notice of its intention of so
/o/
2
doing, by Notification in the Official Gazette, declare that all or any of the
provisions of the Act shall apply also to any other Establishment or Class of
Establishments, Industrial, Commercial, Agricultural or otherwise
Accordingly in Assam Sweepers & Scavengers employed by Local Bodies
have been Covered since 1970. Thus the Maternity Benefit Act is extendible
to various establishment only through a technique of Gazette Notification
by the appropriate Governments. Recently, the CLAP had the experience of
verifying that NGOs are not covered under the Act as a type of
Establishment while considering an application for Maternity Benefit of one
of its female employee. However, the CLAP in its right wisdom allowed
such facifity to its employee. In all such cases providing benefits under the
Act shall be a Humane consideration of the employer.
(2) In exercise of the powers conferred by Section 28 of the Maternity Benefit
Act, 1961 the Central Government made the Maternity Benefit ( Mines and
Circus) Rules 1963. The Rule possesses provisions relating to payment of
Maternity and other benefit in Rule 5 and in Rule 6 it provides for break for
Nursing Child.
(3) The Sales Promotion Employees (Conditions of Service) Act in Section 6 (4)
provides that Maternity Benefit Act shall apply to sales promotion
employees being women as they apply to or in relation to, women employed
whether directly or through any agency for wages in any establishment within
the meaning of that Act.
(4) Similarly the Employees State Insurance Act, 1948 made special provision of
Maternity Benefit in Section 50 of the said Act with the following provision.
(Section 50: Maternity Benefit - The qualification of an Insured Women to
claim Maternity benefit, the conditions subject to which such Benefit may be
given, the rates and period thereof shall be such as may be prescribed by the
Central Government.
(5) Apart from the above provisions in the Constitution as well as laws, service
code of different Govts. & Institutions do provide maternity benefit. By way
of judicial decision some other laws have been brought in to the purview of
Maternity Benefit Act like Plantation Labour Act (Ram Bahadur Thakur Pvt.
Ltd. Vrs. Chief Inspector of Plantation, it is held that a women worker who
worked for 157 full and 4-half days in 12 months is qualified to get
Maternity Benefit) and Beedi and Cigar Workers (Condition of Employment)
Act. { Mangalore Ganesh Beedi Works Vrs. Union of India AIR 1974 SC.
1832). It can be deduced from’the judicial pronouncement that the judicial
trend goes in favour of women where such women are working in an
establishment. An establishment has been defined in various laws including
the Maternity Benefit Act which has already been mentioned elsewhere. An
establishment is not the same thing as “Employer” “Employee” but different
from them. (R.L. Sahani Vrs. Union of India). An establishment is an
organisation which employs persons between whom and the establishment
I
08
3
the relationship of employer and employee exists. Vrs. Transport Pvt. Ltd.
vrs. Regional Provident fund Commission)
THE FOLLOWING LEGISLATIONS CONTAIN PROVISIONS FOR
CRECHE SERVICES :
i
PLANTATION LABOUR ACT ( SECTION - 12.)
In every plantation wherein fifty or more women workers ( including women
workers employed by any contractor) are employed or employed on any day of
the preceding twelve months, or where the number of children of women
workers ( including women workers employed by any contractor) is twenty or
< more, there shall be provided and maintained by the employer suitable rooms for
' the use of children of such women workers.
>
(1A) Notwithstanding any thing contained in sub-section
■
■
i11 respect of any plantation wherein less than fifty women workers
(including women workers employed by any contractor) are employed or
were employed on any day of the preceding twelve months or where the
y. number of children or such women workers is less than twenty, the State
Government, having regard to the number of children of such women
workers deems it necessary that suitable rooms for the use of such children
should be provided and maintained by the employer, it may, by order, direct
the employer to provide and maintain such rooms and thereupon the
employer shall be bound to comply with such direction.
|
(2) The rooms referred to in sub-section (1) or sub section (1 A) shall
(a) provide adequate accommodation;
I
(b) be adequately lighted and ventilated;
(c) be maintained in clean and sanitary conditions;
(d) be under the charge of a women trained in the care of children and
infants.
(3) The State Government may make rules prescribing the location and the
standards of the rooms referred to in sub-section (1) or sub-section (1A) in
respect of their construction and accommodation and the equipment and
amenities to be provided therein.
FACTORIES ACT:
(Section 48. Creches) :
(1) In every factory wherein more than thirty women workers are ordinarily
employed there shall be provided and maintained a suitable room or rooms for
4
the use of children under the age of six years of such women. Such rooms shall
be provided adequate accommodation shall be adequately lighted and ventilated,
shall be maintained in a clean and sanitary condition and shall be under the
charge of women trained in the care of children and infants.
MATERNITY BENEFIT ACT, 1961, (SECTION-11): NL^SUnG BREAK
Every woman delivered of a child who returns to duty after such delivery shall,
in addition to the intervals for rest allowed to her, be allowed in the course of
her daily work two breaks of the prescribed duration for nursing the child until
the child attains the age of fifteen months.
BULKING AND OTHER CONSTRUCTION WORKERS (REGULATION
£ ETC.) ACT, 1996
Section 35, Creches• .
f;?'
;
■
(1) In every place wherein, more than fifty female building workers are ordinarily
employed, there shall be provided and maintained a suitable room or rooms
for the use of children under age of six years of such female woiKers.
U- (2) such rooms shall:
(a) provide adequate accommodation,
(b) be adequately lighted and ventilated,
(c) be maintained in clean and sanitary condition,
(d) be under the charge of women trained in the care of children and infants.
The review of laws to ascertain Maternity Entitlement and Child Care reveals
that Maternity Relief and Benefit for the purpose of various Act
i —denotes
--------- the
following privileges.
1.
Leave.
2. Financial Assistance.
3. Health facility and Safety
4. Nursing break for child care
5.
Creche facility.
The existing laws provide for the above mentioned one; or other types of benefits,
confined mostly io organised sector or to an
Such laws, however arec_
establishment.
Although there was a significant departure in the Judicial trend with the land
mark judgement in the Municipal Corporation Vrs. Female Workers ( Muster
Roll) wherein the Hon’ble Apex Court vindicated the Human Rights of Women,
5
still due to limited scope in different laws it is a difficult task for the courts to
protect the rights of those women who are engaged in the informal sector in
Judicial proceedings. There are a handful of Judicial pronouncements available
on Maternity Entitlement. Some of the case studies are mentioned below.
CONTRACT LABOUR ACT - 1970
£ In exercise of the powers conferred by Clause (vi) (d) of Sub-Rule (2) of Rule 25
of the Contract Labour ( Regulation and Abolition) Central Rules, 1971 the
Chief Labour Commissioner ( Central), New Delhi specified the standard o
Construction and maintenance of the Creches. It inter alia says a Creche should
: be located within 50 meters of every establishment where 20 or more Women are
' ordinarily employed as Contract Labour.
Some cases which have contributed to the interpretation of the issue:
1. Rambahadur Thakur (Pvt.) Ltd. Vrs. Chief Inspector of Plantation. 1989 ( 59
FLR 133) ( 1989 - U-LLN 20)
2. F.M Kolia Vrs Manager, Tiles and Pottery Works Ltd. ( 1981 FLR 109)
i
3. Mangalore Ganesh Beedi Works Vrs. Union of India .
I
!
(AIR 1974 SC 1832)
4. Nargesh Mirza Vrs. Union of India.
5. Rajendranagar Municipality Vrs. B.V. Parraju, 1995 Lab IC 2102 ( Andhra)
6. Municipal Council, Washim V. Manguli Zenduji Dhamane, 1978 Lab IC 881
(Bom).
7. Administrator of the City of Nagpur Municipal Corpn. V Presiding, Officer,
Labour Court, Nagpur, 1976 Lab IC 107 (Eom).
8. Municipal Committee, Bhiwani V. Padam Singn, 1973 Lab IC 1512 (P&H).
9. Hindustan Antibiotics Ltd. V. Workmen, AIR 1967 SC 948.
10. J.K. Cotton Spinning & Weaving Mills Co. Ltd. V. Badri Mali, AIR 1964 SC
737: (1964)3 SCR 724 .
11. Sirur Municipality V. its Workmen AIR 1961 Bombay 75: (1960) 2 Lab LJ
657 .
12. Corporation of the City of Nagpur V. Its Employees, AIR 1960 SC 675.
(1960) 1 Lab LJ 523.
(y
13. Crown Aluminium Works V. Their Workmen Air 1958 SC 30: 1958 SCR
651.
14. Boroda Borough Municipality V. Its Workmen. AIR 1957 SC 110: (1957) 1
Lab LJ
:'’
15. Yusuf Abdul Aziz V. State of Bombay, AIR 1954 SC 321.
16. Budge Budge Municipality V. P.R- Mukherjee, (1953) 1 Lab LJ 195 (SC).
The above citations are only illustrative and not exhaustive. There may be many
? ■. such provisions and judicial pronouncement available in different Statute
■
Books. But the situation of Women Workers in Informal Sector remain
■
unchanged This requires a whole lot of organised demand in order to explore
the Facilities guaranteed by Laws. The reality is that Law by itself cannot bnng
benefit to the Women Workers. There is a need for its translation m to action
through concerted Advocacy at different level. Hence the Key Actors in the
labour movement must reorient their strategies with the changing situation of
women.
f/2
7
Annexure - X
w
1 (.THE MATERNITY BENEFIT ACT, 1961
(53 OF 1961)
1
^p-
(As modified up to the 15t April, 1987)
[Subordinate legislation being published separately.]
GOVERNMENT OF INDIA
Ministry of Law ar.d Justice
1'IIE MATERNITY BENEFIT ACT, 1961
ARRANGEMENT OF SEC IONS
5, CiiUNS
1. Short title, extent and commencement.
2. Application of Act.
3. Definitions.
4. Employment of, or work by, women proh bited during certain periods.
5. Right to payment of maternity benefit.
5A. Continuance of payment of maternity beneli. in certain cases.
513. Payment of maternity, benefit in certain case*.
6. Notice of claim for maternity benefit and pa’ nient thereof.
7. Payment of maternity benefit in case of death of a woman.
X. Payment of medical bonus.
9. Leave for miscarriage. .
10. Leave for illness arising out of pregnancy, delivery, premature birth of
child, or miscarriage.
11. Nursing breaks.
12. Dismissal during absence of pregnancy.
13. No deduction of wages in certain cases.
14. Appointment of Inspectors.15. Powers and duties of Inspectors.
16. Inspectors to be public servants.
17. I\ .?er of Inspector to direct payments to be made.
IS. Fonciturc oi maternity benefit.
19. Abstract of Act and rules thereunder to be exhibited.
20. Registers, etc.
21. Penalty for contravention of Act by vmployei
22. Penalty for obstructing Inspector.
23. Cognizance of ollcnccs.
24. Protection of action taken in good faith.
25. Power of Central Government to give directions.
2b. Power to exempt establishments.
27. Effect of laws and agreements inconsistent wid- this Act.
28. Power to make rules.
29. Amendment of Act 69 of 1951.
?0. Repeal.
»-
i
I
i
• THE MATERNITY BENEFIT ACT, 1961
■53 of 19611
, <• r
.1-
..
[12r/j December, 1961.]
[12f/i
'
An Act to./regulate the employment of women in. certain establish; . ... meats for certain periods’before and after child-birth and (o
provide;for.maternity benefit and certain other benefits.
•
E..-?
.i, : - Be it^enacted. by Parliament in the Twelfth Year of the Republic of India
Ife u
(ThRAct may be called the Maternity Benefit Act, 1961.
• ■ .•
■ . (2). It extends to .the whole of India -’***.
. ..
short title,
extent and
commencement.
(3) iFshall come-into force on such date3 as may be notitied in this behalf
in the Official Gazette,—
■ex ‘.
•
dh..
HS’-W
■ ■ ■’’A
,in.relation,to mines.and to any other establishment wherein persons
' are employed for the exhibition of equestrian, acrobatic and other perform'hyr.hV.'-ancesXbytthe'-Central Government.4,, and]
•• • .
T:.-
’'v >,l-.V S
m relation to other establishments in a State, by the State Govern-
r
:/g'/ '
'
fB-W It applies, in the first instance, to every establishment being a factory. Application oi
p.
, -•;\':'f’1:mine\ODiplantalion'76[including any such establishment belonging to GovernmentAcL
t0 cycry .establishment wherein persons are employed for the exhibition of
equestrian,xacrohatic and other performances]: , ■
. Provided.^hat.the.State Government may, with the approval of the Central
Government, after^giving not less, than two months’ notice of its intention of so
doing, by hptilication in the Official Gazette, declare-tiial all or any*of the pruvisions of ;this;Act-shall apply also to any other establishment or class of establish
ments, industrial, commercial, agricultural or otherwise.
(2)^[Save as otherwise provided in ’[sections ?A and 5B], nothing contained
in this Act] .shall apply to any factory or other establishment to which (he provi
sions of the •^Employees’ Stale Insurance AJi/ 1948, apply for the time being..
I
‘•34 of 1948
3. In this Act, unless the context otherwise requires,Definitions
(a) “appropriate Government” means, in relation to an establishment
being a mine, ‘[or an establishment wherein persons are employed for the
exhibition. of .equestrian, acrobatic and-other- performances,] the Central
Government and in relation to any other establishment, the State Govern
ment;
(/>) “child” includes a still-born child;
(c) “delivery” means the birth of a child;
(d) “employer” means—
’This Act has been extended to Pondicherry by Regulation 7 of 1963. section 3 and
Schedule I and to Goa. Daman and Diu by Regulation II of 1963. section 3 and Schedule.
Tbc words "except the Slate of Jainiuu and Kashmir" omitted by Act 51 of 1970,
section 2 and Schedule (with ctTccl from 1-9-1971).
3lst November. 1963: vide Nrttif’.cation No. S.O. 2920. dated 5th , October, 1963,
Gazette of India, Part II, Section 3(n), page 3735:
‘Substituted by Act 52 of 1973, section 2, for clause (u) (with effect from 1-3-1975).
‘Substituted by section 3, ibid:, for certain words (with effect from 1-3-1975).
‘Substituted by Act 21 of 1972, section 2, for "Nothing contained in this Act”.
/Substituted by Act 53 of 1976, section 2, for "section 5A’' (with effect from 1-5-1976).
^inserted by Act 52 of 1973, section 4 (with effect from 1*34975).
•• •
Maternity
(/) in relation to an cstablis
in which is under the control of
the Government, .a person or au:/.o;:;y appointed by the Government
for the supervision’, and control . : employees or where no person or
authority is- so appointed, the head c:‘ the department;
(ff) in relation to: an cstabljsnmeni under any local authority, the
.,'.;.;pcrsqn. appointed by such authority for the supervision and control of
, employees or wherc.no person is so appointed, the chief executive officer
’'j.of .the..local, authority;
, .Ay
’i
:'’-(Hi)‘in’ any; other case, the person who, or the authority which,
.has,.the .ultimate control, over the amurs of the establishment and where
iiie said affairs are entrusted to any oth.r person whether called a mana
ger,'managing director, managing agent, or by any other name, such
person;*
.
'
^(e) “establishment” means—
...
; fti (0 a factory; •.
'
(ff) a mine;
.■
.
'
:
.(iff) a plantation;
(/v) an establishment wherein persons are employed for the exhibi
tion of equestrian, acrobatic and other performances; or
(v) an establishment to which the provisions of-this Act have been
declared under sub-section (/) of section 2 to be'applicable;]
(/) “factory” means a factory as defined in clause.(m) of section 2 of
. the’Factories Act,
A -r 1948;*
inxo-’ ...
.
.
•_.. -y,:-. <;•<.:
63 of 1948
(g) “Inspector” means.an Inspector appointed under section 14;
: ••-*’ C
“maternity.benefit” means ' the' payment referred to in sub-section
(/), of section 5;
‘
•,
■
.
.................
l‘
■.<
’
1 (/) “mine”’means :.a ,mine as defined .in clause (j) of section 2 of the
Mines Act, 1952;
: - '
35 of 1952.
’
*
'
’*
•
.
.,.1: 1 ; ‘ ‘
.;v.Q}/^miscarriage” means expulsion of the contents of a pregnant uterus
at any : period»prior to or. during the twenty-sixth week of pregnancy-but
does luit include. any .miscairiagc. the. causing■ of which is punishableyunder
the Indian Penal Code;f,
■ .;j:
Vi
45 of 1860.
(/<) “plantation” means a plantation as defined. in clause, (f) of section
'2 of the Plantations'Labour Act, 1951;
•
. • *. T .
59 of 1951.
(/) “prescribed’.^means, prescribed by rules made under this Act;
(/n)'“State Government”, in relation to a Union territory, means the
Administrator thereof;
(n) “wages” means all remuneration paid or. payable in cash to a
woman, if the terms of-"the 'contract of employment, express or implied,
were fulfilled and includes—
.
..
..
’i-’
(/) such .cash allowances . (including dearness allowance and hoyse
rent/allowancc) as a woman is for the time being entitled to;
' (?) incentive’bonus; and
■
(J) the money value of the concessional supply of foodgrains and
.-■><.'->) hr.other articles/;
h•
' .
■' ;■ lSubsil(utcd by/Acl .52 of 1973, section 4, fcr clause (e) (with effect from 1«3-19751
V?-1 nicm r?•;!? (i■' .'
■
5
fU
i
■: Maternity Benefit
f
but dqcs^not.include—.
.
. . >
....■^•^(O.'.any.'bonus other than incentive bonus;
earnings....and : nny/. deduction or payment made on
J.*'ti'
,/r. •• y.'' ::
■■;''‘''^^'ai?yj.co,n“ibllli011 "paid'Or; payable by the <
employer, to any
: ipensipn^fund ibr provident fund'or' for1 the benefit of‘the
woman under
’3?’i . < ■ . ;J>nJi.-13JK4(fir).t.he. time being in force; and
»H'.<-(/v)'Vany--gratt;ity'payable on the termination of service
-Yep' *- ’
?4
If •
(oj^.wpnian?'means .'.a: .woman employed, whether directly or through:
any agency^for.wages :n any establishment.
I?
V
>
’
'
dHrint V —° empJOyer s?-ail knowingly employ a .woman in any establishment Employment or
nng the six weeks immenrately following the day of her delivery or her mis-or 'vork b*' ’
carnage.
.
women prohibilccl during ccr-
J
• •
■
xr
dint t
W0ma,n ^a!! w:rk in any establishment during the six weeks imme- U?n pcriods'
oiate.y io.llowingtthe day oi ner delivery or her miscarriage.
.
1
,
^'ibout prejudice to the provisions of section 6,-no pregnant woman i
O i ? a req“est;be,n8 made;by her. in this behalf; be required.by her employer 1
uring . te. period specified in sub-section (4) any work which is of an
arduous nature or which involves long .hours of standing, or which in any .way is
tkely o interfere, with her pregnancy or the normal development of the foetus, or ’
is likely t1? cause.:her miscarriage-or.'otherwisei io1 adversely1 affect her health.
(4).The.'period.referred to in sub-section (5). shall be—" • :
■>
.
■' 1
!
*
the'iperiod of one'month immediately preceding: the period of six 'k '
weeks, beforeithe date of her expected delivery;
' *'
'O
(i) any period during the said period of six weeks for which the preg. nant woman does .not avail of leave of absence under section 6.. r; .r,
to nnd(f,LS^jer t0 tbe P;ovisions of ‘>”3 Act', every woman khall be’entitled Rij-ht to payr
to payment
i'll * r ft. CmP Oye<r sba- te hablc for. the payment of maternity, benefit at the of! maternity
XJ^n ^raiC^ai'yJaee-r'‘I^Peri^ 0f':te'''^tual absence:immediatelybTefit-
' '
Explanation.—Vor the purpdse'.'of • this; sub-section, the'average daily wage
means the average, of the woman^wages^payable to'her for'the days on which
7rke^,Wte P^iod of.jt.hree 'calendar, months immediately preceding
*tK“
’ X.
J'} No w°Hiai.1..,-,’hall be cniitled.to maternity.benefit unless she has actually
r" f"? ..cf;abl,?hnien: ottte.employer..from,whom she claims; maternity
:--^'JnCnt''fOr^Pa'^ ■Of'n°: ;css-.(ha.n..onc. hundred .and. sixty-days in the twelve
. ; months immedmtely-prececir.g the date of her expected delive>y; . ■ . i ". . .
'
•z tr
■
:
,
p‘'°yided dhat -the qualifying period of one hundred and sixty days’aforesaid shall not apply to. a .weman ;who.- has immigrated into the State of Assam
■ and.was pregnant at the time cf the immigration.
purpose.of calculating under this sub-section the days
^’^hy worked in. the establishment, the days for. which
' ' j
£e. baS . b=c":;!.a!d'.,?ff .dunng the period of, twelve months immediately preceding
i^te date other expected delivery shall.be taken into account.
■ t
,
—
(rJ) The' teaximutp peritd for which any woman shall be entitled to maternity
;?";.;.;??;'i"bencf't shall,,bprtwclvc wee.:s..that-is to-say. six weeks up to and including the
“:y|;y:..: day of her delivery and six weeks immediately foliowins that day'
;i
1
h
.
•.•—.ir-—•-rr.T.-er.-rr.r.hri
................ . • ... .
.
■;
Maternity Bencj';!
fe .
■ uuthat..whcic> a woman dies, during this period, the maternity benefit
shall be payable only lor,die days up to.and including the day of her death :
• a.
having been delivered of a child.
• dies.;during her delivery or during tne period of six weeks immediately followbehind in either ease'the child, the employer
for’ahe'malcrnity.bcnerit.-.fof the entire period of six weeks immediaiely;foilowihgHhc day of her delivery, hut if tb.e child'also dies during the said
period, tlicnd for the .days tip to ,anil including the day .of the death of the child
r.>;
Vit
^nerno^wonian' entitled ;to..the‘-.payriient of maternity benefit under this
maternity benefit Aci;.-shall, notwithstanding . the-.application of the Employees’ State Insurance 34 of 1948.
in certain cases. Act, 1948, to the factory or other establishment in which she is employed, continue
: '.-ij'-'’ t6“ be •••so ''entitled’'' until she becomes ‘ qualified to claim maternity benefit under
• section'50'of that :Act.]
Payment of
; 3[5B.. Every woman— .
maternity benefit•?. •r.-i.---'. ■. ' -•••’ i.’’;
•
’
in certain cases.
‘ GO who is. employed in a factory or other establishment to which the34 of 1948.
provisions of the Employees’ State Insurance Act, 1948, apply;
’:1? '■'■ (/?) whose .•■vyages -(excluding, remuneration for • overtime work) for a
month exceed the.amount specified in sub-clause (b) of clause (9) of section
2 of that Act; and
...
• -- ,
■■■
■;
■'
’
•
■*
#
‘
•
(c) who fulfils the conditions' specified in sub-section (2) of section 5.
’..^shall be .entitled to, the payment:of maternity benefit under this Act.] .
Notice of claim
for maternity
benefit and payment thereof. ’
■
i.
. 6. (7) Any woman-employed.?in an. establishment and'entitled to maternity
^nefit under .the provisions of this Act may give notice in writing; in such form
as^may- be 'prescribed', ’ to her employer, stating that her maternity benefit and
any'Other "amount to which she may be entitled under this, Act. may be paid to
her dr to* such*person as she may nominate in the notice and that.she will not
work* in any "establishment during the’ period for which she receives maternity
benefit.7
' ••'
' 1 -• ’il '
i
I
1
i
’.’.VJ’fO In' the1 case of a woman* who .is pregnant, such..notice,.."shall state the
; ’•/'date’from* which^she^will be'absent from .work, not bding a date .earlier than six
' weeks1 from the date of her expected delivery.
1.??< 4;
z.'
. ,(3),Any .woman who has’not given-the notice when she-was pregnant may
give'such*notice :as soon as possible after the deliver}’. < hc
i
'•’’i W 1 On -receipt of the notice,’ the employer shall permit such woman to. absent
herself from• the lesiablishment until'the expiry of six weeks after the day of her
delivery.'
.;’,•••■
’
..(5) The amount of maternity’benefit for the period, preceding (he date of
;‘hcr: expected‘‘delivery shall be paid'in advance by the employer-to-the woman
■ on production’of such proof as may be. prescribed that the. woman is pregnant,
■ and the amount due for the subsequent period shall be paid by the employer to
the .woman within forty-cignt hours of production of’such proof as may be
prescribed that the woman has been delivered of a child.
’
z
(6) The. failure-to give notice under this section shall not disentitle a woman
•v • to maternity benefit of any other amount under this Act if she is otherwise
•. ’jim'entitled to such benefit or amount and in any such case an Inspector may cither
?::nn>.of'his. own-motion of .on .an.-application made to him by the woman, order the
' ' -payment of such'‘benefit 'or amount within such period as may be specified in
.■
the^orderJI^
’•
r ''
’
•'
‘ iinscr(ct] by.Act 21. of.. 19.72, section 3.. • ,:. •
;. • , ■ •
, -Inserted by Act 53 of 1976. section 3 (with effect from 1-5-1976).
// Q
i ■
.!
I
1
i
!!<
I
...:\
Malci'niiy JJeneJli
•
' •
. 7. If a woman entitled to maternity benefit or any other amount under this ^"’^‘yVcnent
Act, dies before''receiving sucli1 maternity benefit or amount, or where the em- in case of dca,h
ploycr is liable'for- maternity:benefit under Ute second proviso o sub-s^Uoni U of a worn n.
of section 5, the /employer, .shall pay. such benefit or amoum .c the pc son nomr• nated by the woman, in. the notice, given under section. 6 aim .a case there
- such, nominee, .to her< legal representative. _•
...
. ••• .’ t
t
8. Every-'womaVentitled'’to1 ma'te'rnity benefit under this Act "shall -also bei P;
entitled to receive5 from her employer', a' medical bonus of twenty-five rupees, if
no pre-natal.coniihement and‘post-natal care is provided
by tie emp oyer
,
free of charge.
• ’
’ ’
9. In case ^f'miscarriage, h woman shall.' on production of such. proof . as
may be prescribed, be entitled to leave with wages at the rate Cv maternity benefit, j . ..
.
for a period of six weeks immediately following the day of her miscarriage.
1
I
I
10. A woman suffering from illness arising out of pregnancy, delivery,, pre-; L^foj-UIncss
mature birth of child or miscarriage shall, on production o. such proof as may pregnancy, delibe prescribed, be entitled, in" addition to the period of absence allowed to her very, ^mature
under section 6, or, as the case may be, under section 9. to -cave with wages at miscarriage.
the rate of maternity benefit for a maximum period of one mon:.-.
'-• •
I
11. Every woman delivered of a child who returns to duty after-such, deli- Nursing breaks,
very shall, in addition to the interval for rest allowed to her. be allowed in the
■
course of her daily work two breaks of the prescribed duration .for nursing the
child until the child attains the age of fifteen months..
.
12. (2) When, a woman absents herself from work in accordance ;with • the Dismissal^ during
provisions of this Act, it shall ,be unlawful for her employer to discharge-ton dis- na
miss her during>or on account, of-.such .absence or. io give nonce of.discharge or lx,. ..
.
dismissal, on- such
day.Jhat. the notice-will cxpire.dunng such,absent-, or to
.
vary to her disadvantage.any ,of the conditions..of.her,service. t_,
jj; i-;w- • «■
'
(2) (a'- The discharge or dismissal of a woman at any tine during' her preg
nancy. if the woman but for such-discharge or.dismissal would have been.entitled
to maternity;benefit or medicali-bonus referred ito -in. section -8.:,.sha|l, nothave
the effect of depriving her of the maternity benefit or .medical bonus Atni ’(.Ui tr r >" .'
■ Provided that‘where the dismissal is' for any prescribed gross misconduct,
the employer mayi by order in'writing' communicated ,to the woman, deprive her
of the maternity benefit or medical bonus or both. .
■:
(b) Any'woman deprived'of-matemity benefit tor .medial bonus’-or both.
may. within'-sixtv days from the'-date on which the order of such -dcpnvat.on is
■
■
comniunicaled ,4..-her. apiK-al;,!.. i-such aul.lu.nty as-nuiy be .-acSLubud. .and the
<■
.. ’
:
,
j
a-: decision of that',authority.on-such, appeal,. whether Ihe womtn sho.uld or..should Jr ,
■ ;;Jmot be dcprivedjqfi.maternitylbenefitjor.medical, bonus or t>c:n. shall be final.
. ’ '
,
.
/ (c) Nothing -contained in this sub-section shall affect'the provisions contained
'7-fin sub-section (I).rr
• ••
'O'n-No ^edl^pnjrom'the normal and usual daily wages ci a woman entitled No d^ci.on. of
'
to maternity benefit'under the provisions of tins Act shai. ce made by reason C3^s
z
•
'. only of—
b‘ ”
. ’ .
' ■ ■
j' .yrS.":1?' '■• ■ (ay'the'.'nature of work:'assigned to-her by virtue c: the provisions conrtained'in sub-scction (3) of section 4; or ' ’
'(b) b^aksTor nursin^thc child allowed to her u-ce; the provisions of
?riJ."' ■■ ■■
14’ Thc‘:appropriate Government-may, by notification i-_ :he Official Gazette. Appointment of
4 of L&.L-86 .. •
z I
vT’.' O.' ■
'-f f‘?
Afjfcrniiy Benefit
an<1 may ^e{inc 11^ local limits of the jurisdiction within which they sha.l exercise
^fd Af.r^^EH^-VA^l^IxiCtprymay,-. subject to . such restrictionsor condi::c.-.s as .T.ay
::p5ciorsCt
•'y‘Vl3e-<Pre8Cribed, exercise all. or any of the following powers, namely: —
, • ’•’
'’fi" reasonable times with such assistants, if ar.
ceing
the!?Government or any ’local or cihe public
as- heytliinks fit,'ahy premises or place where women ere employed
an. establishment, for the .purposes o: exarrJning
ji'ij^ny.-.registcrajbrecords .and notices, required to be', kept'or exhibited by or .
x^yojq.under, thisjAct;and..require their production for inspection;
v
■'
’
.
1 4'A’;v
I. i '
•
,•
v..
•'•'f
• 1 ,
examine'any person whom he finds in any premises or place and
;fjvv icX^Yho/jhe has'reasonable .cause to believe, is employed in the establishment:
Ji;.Provided! that'no., person shall.be compelled under.this.scclior. to answer
^'any;question' oi\.giVC;any evidence tending to incriminate himself;
require. thcbcmployer_ to 'give information regarding the names and
•kf v.-;. -. •>?:5^^/.^addressesfpf;.women:enip)oy2d7 payments' made to theifi.' and applications or
V-.
notices received from jhem under, this Act; and ' : . . * f•1 •
.
iu .y&gnY/ S (J) take! copies {.of: any. registers and records or notices or any portions '
< • thereof. .-■?
ij’fir*
'hrc • ?
v.
/16.<Every vlnspeclor7 appointed ;under this .Act shall be deemed to be a
Inspectors to •**
be public
’« publicrservant ,within: the..meaning -,of .section<21 of the. Indian. Penal Code. , 45 of I SC-'
servants.
17. (/) Any’woman claiming'that maternity benefit or;any‘other amount
Power of
Inspector to .
to_ ...which she is_ entitled under this1 Act and any person claiming-that payment
to’-hs rnade!-nf • ■?'''due'■•under• section. Vidias .been:improperly withheld may.make’ a complaint to the
k ^Inspector/i?/;
•• .• \ i -.-a Jetv f/i ufA;
.. »? JjA’Aiti:
fox 'Thr’ 'Inspector;
Tncnftrtnr'' may,
mnv of
c»f lusf
his<?own
nwn ‘ motion’ or .on?
on? receipt
recciot;. of a complaint , .
. : , jji2)''The
? referred'to in^ sub-section-(7). make^anjnquiry or*'cause, affrinquiry to be made ,
' and*jL satisfied that/payment has •beenVwrongfully withheld, may 'direct the pay-..
^mpnt;to^bc:madc.in accordance;wh^
• ^■- *‘<-(3) Any person;aggrieved-by/the decision °f the Inspector,.under sub-section .
(2) may;'within-thirty^ days from the date on! which such; decision is communi
cated to such person“/appeal tolthe prescribed authority. A'
1
lox?hue.(4)i.The: decision.-;pf-..thc-prescribed.,authority,.:where an ^appeal has- been pre■ ferred to it -under.sub-section. (3), t or, of., the Inspector ...where, no such appeal .has; 1
becn preferred, shall be final. ..■■fo
\
',k*n'rj rjui.
' (5) Any amount payable under this section shall be recoverable as an arrear
' of--land revenue/?. r- . • ? •, - - • --.A’. 7i,C
18. If a woman works in any establishment after ! she-has been permitted
Forfeiture of
malcmily bcoelit. • by’her employer to; absent herself under the provisions of section 6 for any period
during such authorised absence./she shall forfeit her ?claim to the maternity
-r. benefit for.such period^, . :
«
- 19. An abstract of the .provisions of this Act and the rules made thereunder
Abstract of Act
and rules there7 ,,v-in .the language orjanguages of the locality shall be exhibited in a conspicuous
under to be-: f
, exhibited. • ’^placerby the cmployerrin. every part of the establishment in which women are
'j'
employed. . .
ij
Rcgisicrs, etc. ..iioi-^ZO.-EveryijCmploycr., shall, prepare ..and maintain such registers, records and :
h .. A .//.? ■? . , .
.
muster-rolls and in such manner as may be prescribed.,
;
. h -//"'i/-i ;-\pcnahv forcon?::xri'>i.' 21.' 4f ' any.icmployer)f conlravenes the-.provisions of this Act or the rules ’
?Li:<nwdc.'»hcicundw;'ho' slutirbc punishable with imprisonment which may extend
fl®
-itrius
idtVhy Aft 5>?.............................
oj1 ff-:
•
■
■
'
i
?
'f
L\la(erni(y [Jenefil
both; and where tlic contravention is of any provision regarding maternity benefit
or regarding payment of any other amount and such maternity benefit or amount
not already.been recovered,"the court shall, in addition recover such maternity
benefit or amount as if it were a fine and pay the same to the person entitled
thereto.
’ . .
' :
.
22. Whoever failsto produce . on .demand by., the Inspector. any register or Penalty for
document in .his custody kept in pursuance'of this Act or. the rules made there- obstructing
under or conceals or prevents'any: person from appearing before or being examin-Inspcclor’
cd by an Inspector1’shall be .punishable’ with imprisonment which may extend
to three months, or with fine which may extend to five hundred rupees, or with
both.
;
; ... ...
f.
23. (1) No. prosecution-for fan’ offence-’ punishable '■■■ under'this’Act-or any Cognizance of
rule made thereunder shall ,be instituted after the expiry of one year from theofTcnccsdate on v/hich the offence, is. alleged to have been committed and no such pro
secution shall be instituted -.except by, or with the previous sanction of. the
Inspector:-1..
( “• ><.
.. •
:
■’ r
”
“
■
,
?
—
..
-
‘•=
t
•
Provided that in computing, the’period of one yean aforesaid,-the time, if
any, taken for the purpose .of.obtaining.such previous-sanction shall.be excluded.
(2) No ..court inferior to, that vof a :Presidency cMagistrate or a Magistrate of
the First
;r,-r
24. No< suit,^prosccutibn^of. lothcr;/legalH-proceeding ‘ shall lie'against any Protection of
person for. anything ^i<%}Wifjnitgoodzfaith done. or. .intended to be done ;in pur- •1ncliooncdla{ccn.
, k,. ■
'n E°°
;;■ •.: ;;y-^S.^h^Central^ove^
give- sucir1 directions as'it*may11 deem Power of Cc-nual
•
inecessary.-: ’to^a; Stated Government4' regarding the carrying into^execution’ of' the povernm^^^ to
■
sha" ”"plysu‘tairee'i°n!'
satisfied that having regard to-air estab-Power to exempt
for- the•»grant of benefits which establishments.
Act it is accessary so to do,
exempt.rsubject to such conditions • i
^“specified un the notification, the establishment :I
oriany ot'the provisions of I
;:/’vb‘
•
of this’' Act ‘;shal>have' effect notwithstanding anything Effect of laws
;
any’other'law or in the terms of any award, ?nd agreements
.•<£7agrccmenti;oiycontract of service, whether made before or after the coming into this Act.
force of this Actt^^^^j'^A.,,.;,^. f :j
;■■ ■ .< ■
such award, agreement, contract; of service
W;\;r7or otherwise^a^omaniis entitledjto benefits.in respect of any matter which are
more favourable to her than those to which she.would be entitled under this Act.
. * •‘ the woman shall continue to bc-entitlcd to the more favourable benefits in respect
••
\ of that matter,'notwithstanding that she is entitlcd to receive benefits in respect
of other matters under this Act.
•
•
■
/
(2) Nothing contained in this Act shall be construed to preclude a woman
from entering into an agreement-, with her employer for granting her rights or
•
. privileges in:respect1 of any matter which are more favourable to her than those
' ’
to which she would be entitled under this Act. -. J •
28- (/■)' The appropriate Government-may, subject to the condition-of pre-Powcr to
• vious publication and‘by notification in the Official Gazette, make rules for rules,
carrying out the'purposes .of this Act. . <• •.' .-
72/
!
V.
Muiertihy IkiicJ::
[act 53 op I196^-
'
(2). In ■particular,! and without prejudice to the generality of .the foregoing
power, such Titles may pro vide, for—
- :' jL<(0;.tbe . preparation’ and ■‘maintenance of registers, records and mustcr•! rolls-y-^^l^;^ c': “■
• • •■ •
. '•
"■
■ • ,
’
. <6)Kthcr.exercise of powers (including the inspection of establishments)
and^thc ‘pefformance’-'of 'duties ‘by 'Inspectors"for'.the purposes of this ActV’--. h)
•
r.;;< .
;
.•Jr <.
■ :
’ •
•’!
■
jnaterm.y.^ benefit and other benefits
bce" made, therefor in this.
J/.-r.*
Vvih •
’•
.
■
9f; nolices under section 6;
•
required under the provisions of this Act; .
■
j}; -
f
\*^‘^^);act.s^whicii.'.may constitute-cross misconduct for purposes of section
■■tlie.jtauthofityyto which’an appeal under clause (/?) of sub-section
■.(2)/of :sectibh:vl2/shall* lie; :thc form’and manner in which such appeal may
be made zarid the‘procedure to be followed in disposal thereof;
■ ■ .
,jf*v
•
I
;-ha-(O.-tthe^authority?:!to■ which?an appeal'shall1 lie against the decision’ of ’
the Inspector under section 17;. the -form 'and manner in which such appeal '
majrbc^ia^e andrthc.procedure to be followed in. disposal thereof; ; « ' ’ • ’
■».
!
’’ 0
*-form?,and';manncr5':in' which'complaints may be' made to Inspectors?un.der)5ub:sectipn‘(/) of sectionand the procedure'to be followed4’ ’ '
•
by them^wh.en making .inquiries, or causing inquiries to be made under sub?\>ccdon^^f.Ihatfscctioii;-. ;
:T.... ..
;-cl <n<k.
■'
anytother matter which is to be, or may be, prescribed,
(3) Every rule made' by the Central '■ Government under this ’ section shall
be laid as -soon^ as may be after it- is made,* before each: House of Parliament
while it is inscssion ;for a total period of thirty days which may be'comprised-in
one session•.’[or>in>two or more- successive-sessions, and if, before the expiry :of
the session immediately following-the* session or the successive sessions aforesaid,]1;
both Houses agree in making any-modification fin* the rule or both' Houses agite
l'1
that the rule should not be made, the rule shall thereafter have ••effect’ only5jn 5• T’•' *such modified form or be of no.effect- as the case may be; so however that any
such modification or annulment shall be without prejudice to the validity of any- ;
thing previously done under that rule.
...
...
•\rricr.dment of Acl
6‘i ol 1951.
29. In section 32 of the Plantations Labour Act. 1951,—
■'
(a) in • sub-section (I), the letter and brackets “(a)” before the wordsx
“in the case of sickness”, the word “and” after the words “sickness allow- ’'<•
ancc” and clause (6) shall be omitted;
•
’ :;
(/;) in sub-section (2), the words “or maternity” shall be omitted.
;
30. On the application of this Act—
(0 to mines, the Mines Maternity Benefit Act, 1941; and
.
19 of 1941.
•
(/7) to factories situate^ in the Union territory of Delhi, the BombayBom'Act VII
Maternity Benefit Act, 1929, as in force in that territory, •
■■ ■■■. - °< 1929‘
shall stand repealed.
•J *
*-
.”
'•
..................... .....
,
’
:■
• > • . •. •
..1_—rj_
. r
•
-
Lj j_-, -,_J1 t_.T
'
Substituted by Act 52 of 1973. section 5. for certain words (with cITcct' from 1-3-1975). !
MGIPCBE—S6—13 Mof L&J/86—29-6-87—2,000. '
’
J
i i!
/2>
i
Annexure - XI
Maternity Entitlements for Women in the Dnoroaniycd Sector
A Policy Dialogue; 28 I cb 2001, New Delhi
PRESS RELEASE
\ ear after year has gone by and now die “The Women's Empowerment Year” is also slipping out
day by day. With 8th March - Women's Right Day around die comer, it is time to ask what the
present Government has done to empower women of our country?
All diose who have been working with women ana children are well aware of the harsh and
unprotected circumstances in which women go dirough pregnancy, birth, lactation, and care of
infants while earning a living and carrying out household responsibilities. The issue of maternity
entitlement is therefore a critical one for women’s empowerment, children’s development
and subsequently for the growth of the Nation. The importance of maternity entitlement has
well been accepted in the Ninth Five Y’ear Plan document but sadly not at all reflected in the
actions of our present day central government.
file Government though agreeing with the text of the proposed International Labour
Organization’s Convention (C. No. 183) and Recommendations (R. No. 191) on Maternity
Protection, has denied its ratification, on the pretext of its inability to implement the
provisions of the proposed Convention and Recommendation. These Convention and
Recommendation sought to improve die maternity entitlement provisions and enlarge its coverage
to the unreached needy populadon. Denial of any such improvement in the Maternity Entitlement
provisions on the pretext of limited resources is not justified at all and requires a reconsideration
of the stand taken by the Government.
It is a well known fact that maternity leave and benefit can only be accessed by women working
in the organized sector which is only about7% of all working women. The leave entitlement
under the Act do not even provide for the 4- 6 months of recommended exclusive breastfeeding.
It is well understood that enabling mothers to breast-feed contributes to the health and well being
of both mother and the child. Creches on work sites are one important way in which mothers can
breast-feed and parents can continue to contribute to the care of their young children while
earning their livelihood. But few establishments make provisions for. creches and women and
young children are put to great difficuiiy. Therefore a thorough examination of the gaps in laws,
policies and programmes vis a vis Maternity Entitlements and Creches is required by the
Government and Policy makers so that approximately 120 million women who work in the
unorganized sector can be covered. Studies conducted by eminent scholars in the field like Mina
Swaminathan clearly show that that India’s rating in respect of Maternity laws and Policies is far
below than the ratings of other Socialist and market oriented countries.
Looking at the available services, there are approximately 15000 government funded creches
(under die Working and Ailing mothers scheme and the National Creche Fund) in the country
catering to 3 lakh children where as die need is to reach 60 million children under 6 years of age.
The Government is well aware of gaps in die outreach of such schemes and recognize it in dieir
own Annual Reports but shy away from taking any concrete steps to budge the gaps. The gap
speaks for itself and well reflected in high rates of Maternal and Child Mortality and morbidity.
The Maternity Benefits Act. 1961 and the Employees’ State Insurance Act, 1948 are not
only inadequate but are impossible to apply to the unorganized sector for lack of
Z2-5
othcis] , on 8 March 2000, has upheld the right to Maternity Entitlements for
women on daily wages in a landmark judgment. Sccreme Court i^led that “We have
scanned the different previsions of the Act and do no:
anything contained in the Act
which entitles only regular women employees to the ber.ef.t of the Act”
Then Judges further stated that: “ To become a mother is the
rr.cst natural phenomena in the life
of a woman. Whatever is needed to facilitate die birth of a ch:
..z to a woman who is in service, the
employer has to be considerate and sympathetic towards
r.er and must realize the physical
aSintl WhlC1\a WOrm?3 WOman W0Uld face in Perfonr“-S h2‘
at work while ‘canymg
a babj m the womb or while rearing up the child after birth”.
S
In this context, FORCES network is organizing a Policy Dialogue on ■■Maternity Entitlements for
Women tn the Unorganized Sector" on 28"' February 2001 at Vishwa Yuva Kendra Senior
DePL °f yVOmen a,Ul C,li,d Devel°Pment
li- K. Chaturvedi-Secretary
HU), Rational Commission for Women, National Labour Commission Renana Jhabwala
Ma, ohar and SMi^l ’^n SE^)’National
Commission'Justice Sujata
?"nd’S',rl yifcn‘ira Oval, Labour Ministry (Sri S. K. Das - DG Labour Welfare)
i.uaomu Population Council (Ms. Krishna Singh - Member Secretary), 1LO ( Ms Jyotv
<m Gender issues) , UNICEF(Sri Shiv Kumar-Expert on Maternal and
wi beam
,
LKrlyani Me"°n
are
,o P^Ucipate. Addressing the
wh '> •
.
worK‘"S i" Ute field of Child and Women’s Rights like Ms. Mina Swaminathan
RiMts^
W.OrkUlg °,n thc ,SSUC sil,cc last 30 yearsi an3 ^eran leaders from Labour
Rtghts organizations such asMs. R. Geetha from Nirman Mazdoor Panchavat Sangh Ms
Creches
i ^r’ RanJa',a Niru,a fr^ CITU Ms. Mridula liajaz from Mobile
FORCE^' Brl/,daAara^ntA3D>^
Devika Singh and Dr. Vandana Prasad from
] ()RCE^Pa ^Per^ 1‘keDr. Amita Dhanda from National Academy of Legal Studies and
Research (NALSAR-Uydrabad), will be facilitating.
'
modiersaS?? 'e*1T
lmPorta“ce of Maternity Entitlement in dealing with tlie condition
motliers and children and since its inception tn 1989, FORCES has been pushing for the adoption
of a holistic Maternity and Child Care Code. The proposed workshop, will be one step ahead in
e achievement . tins goal as it would enable the forum to assess the ground level situation
more comprehensively and provide opportunity to interact with people and exchange its
p rspective on Maternity Entitlements with others who are concerned about this issue. Within tlie
woikshop tlie issue will be seen from perspective of women as workers , and motliers and from
dial of die needs and rights of children. To this end the workshop will attempt to brmg together
people from trade Unions in Organized and Unorganized sectors. Women’s Organizations
NGOs, and Government and International Agencies.
b
/2
Not viewed