This article is written by Astha Tripathi, a law student at Maharaja Sayajirao University of Baroda, Faculty of Law, with a keen interest in Environment law, Constitutional law, Jurisprudence, Administration law.
In 2018, an Air India cabin crew member who had served for several years unveiled a company regulation that required pregnant women to retire immediately. This practice, which the Supreme Court declared discriminatory, was only rescinded decades later. What the Air India scandal says about Indian society is that a woman’s body can become her undoing at work. India’s current maternity leave policies are among the most generous in Asia, with 26 weeks of paid leave, crèche and work from home facilities. Yet, even as Indian women are constitutionally entitled to maternity benefits, they continue to face discrimination during pregnancy, which manifests in the denial of promotions or contracts.
The issue with maternity protection in India is that although the country has one of the most progressive laws on leave and rights during pregnancy, employers continue to penalise women in ways that are not easily evident in policies. In short, maternity leave in India is more of a privilege than a right. Explaining why companies continue to discriminate against pregnant employees despite the existence of strong legal frameworks is key to understanding the state of maternity protection in India.
The Legal Framework on Paper
India’s maternity leave laws originate in the Maternity Benefit Act, 1961. This legislation consolidated the Bombay Maternity Benefit Act, 1929 and the Mines Maternity Benefit Act, 1941, and extended their reach to factories, plantations, and shops or commercial establishments employing ten or more persons. Every woman worker is entitled to maternity benefit equal to her average daily wage. The 2017 Amendment enhanced this provision by increasing the duration of paid holiday to twenty-six weeks from twelve weeks. It also brought adoptive and commissioning mothers under the Act for the first time since its enactment in 1961. Furthermore, the employer may permit working from home on return from maternity leave. Constitutionally, India’s maternity protection laws are founded on Articles 42, 14, 15(3) and 21 of the Constitution.
The Maternity Benefit Act also seeks to secure the employment of women during pregnancy and after childbirth. Notably, Section 12 states that an employer shall not dismiss or discharge a woman employee because of her pregnancy or maternity leave. This provision recognises that maternity leave would be meaningless if the worker is discharged from employment immediately upon return. The Act further allows nursing breaks at the workplace until the child attains the prescribed age. In addition, any establishment with fifty or more employees must provide crèche facilities and allow four visits by a nursing mother, including breaks.
Why the Law Was Strengthened
The 2017 Amendment responded to India’s low female labour force participation rate (FLFPR), which was among the lowest globally, at barely 26%, compared to 34% in Saudi Arabia and 29% in Pakistan. By virtue of the amendment, the government sought to promote gender equality at the workplace while addressing a critical skills gap. India’s low FLFPR was a concern because a significant proportion of the population was not contributing to the GDP. The changes also conformed with the World Health Organization’s recommendations on breastfeeding and India’s commitments under the Convention on the Elimination of All Forms of Discrimination Against Women.
Further, the government realised that women who took career breaks after childbirth faced multiple challenges compared to their male counterparts. Studies show that pregnancy and long maternity leave affect women’s careers, primarily if they intend to resume work after a prolonged break. For instance, women are more likely to experience a slower return to work after childbirth and reduced earnings from employment. They are also likely to report a lower likelihood of being promoted to senior leadership roles following pregnancy. By extending maternity leave and providing breastfeeding and crèche facilities, India’s legislators sought to ensure that women could continue working productively after childbirth.
The Gap Between Statute and Practice
India’s maternity protection laws are imperfect because they fail to consider the nuances of women’s work. First, the Maternity Benefit Act only covers women in formal employment. Many Indian women work in the informal sector, in agriculture, businesses owned by men, or the gig economy. Consequently, the law does not apply to them, defeating the purpose of universal maternity protection. Second, although the law protects women from discrimination, it does not prevent employers from discouraging marriage and childbirth among female employees. Third, pregnancy-related costs are entirely borne by the employer, who is also responsible for replacing the worker in case of termination. As a result, many companies view maternity benefits as a burden, particularly when hiring term-time workers.
Employment discrimination based on pregnancy commences with recruitment and continues throughout employment. Women of childbearing age are often asked intrusive questions that have nothing to do with the job’s requirements. Although employers do not openly state their biases, pregnancy-related costs largely dictate their hiring and promotion decisions. For instance, pregnant workers may be denied promotions because the employer cannot bear the additional costs of maternity leave, enhanced insurance, and maternity benefits. Moreover, pregnancy can result in demotion, being excluded from assignments, and being denied work opportunities due to the employer’s unwillingness to accommodate breastfeeding, nursing breaks, and return to work after maternity leave. Such discrimination is difficult to prove because it occurs mainly through unwritten understandings.
India’s maternity benefit laws do not account for the financial implications of pregnancy as thoroughly as those of more developed economies. Further, the laws do not prevent employers from penalising women workers who decide to have children. For example, the Equality and Human Rights Commission (EHRC) in the United Kingdom revealed that pregnancy discrimination encompasses being denied a promotion because an employer is reluctant to pay additional maternity leave or being laid off while on maternity leave without consultation. Similar economic considerations explain why pregnant women and new mothers are often subjected to adverse terms of employment, particularly when it comes to hiring and promotions. Unless India’s maternity protection laws become more comprehensive and nuanced, the gap between policy and practice will persist long after the law’s promulgation date.
Judicial Interventions
India’s judiciary has been instrumental in interpreting the maternity protection laws and ensuring that they are not implemented in a manner that perpetuates gender discrimination. In Municipal Corporation of Delhi v. Female Workers (Muster Roll) (2000), the Supreme Court ruled that casual, ad-hoc, and daily-wage workers also retained maternity benefits by virtue of Article 21 of the Constitution. In Air India v. Nergesh Meerza (1981), the Court held that pregnancy could not override fundamental rights such as equality and freedom from discrimination, declaring a service rule requiring women to resign on experiencing their first pregnancy to be “arbitrary and discriminatory.” Neera Mathur v. LIC (1992) determined that pregnancy could not be a ground for denying employment unless the woman has chosen to have children or take maternity leave voluntarily. Most recently, Deepika Singh v. Central Administrative Tribunal (2022) determined that maternity-related legislations should be interpreted in a manner that reflects contemporary social realities.
Generally, Indian courts have taken a broad view of maternity benefits by interpreting them as rights under Articles 21 and 14 of the Constitution rather than mere contractual terms. Consequently, the judiciary has mandated that maternity protection laws should be applied liberally to advance the principles of equality, privacy, dignity, and freedom of speech and expression enshrined in the Constitution. As a result, pregnancy and maternity benefits are now viewed as fundamental to every woman worker, not as a privilege reserved for a select few.
Structural and Economic Barriers
India’s maternity protection laws present several structural challenges that hinder universal compliance. For one, the Maternity Benefit Act mandates that all pregnancy-related expenses, including leave, crèche facilities, and nursing breaks, shall be shouldered by the employer. Unlike in more developed economies such as Singapore and France, parental leave is not deducted from insurance or funded directly by the state – it is entirely the employer’s responsibility. The financial burden creates a disincentive to hire women, particularly in the organised sector, where large multinational corporations can afford to bear the expenses but do not always do so.
Second, maternity-related expenses fall disproportionately on women compared to men. India’s laws do not provide any form of paternity leave, meaning that men can take time off work to care for their sick or new children without any economic penalty. In contrast, women are expected to care for their sick children indefinitely or return to work immediately after childbirth. Unless the structural economic challenges associated with maternity benefits are addressed, India will continue to experience inequality in parental leave, with fathers taking fewer days off work than mothers.
Reform Proposals for Maternity Benefits
India’s maternity benefit laws require strengthening in several ways, including establishing a funding mechanism, adjusting the insurance framework, and introducing parental leave. First, parental leave should be shared, with costs shouldered by the employer, employees, and the state. This approach will reduce the financial burden on businesses while preventing employers from economically penalising women for pregnancy or childbirth. Second, maternity benefits should be extended to cover women workers in the informal sector, gig economy, and platform-based work.
India needs stronger enforcement mechanisms to ensure that all businesses comply with the existing laws. For instance, the government should conduct routine inspections and impose penalties on employers who exploit loopholes in the Maternity Benefit Act. Third, a legislative framework on paternity leave would help balance parental responsibilities while reducing the burden of child care on women workers. Finally, sensitisation campaigns on maternity benefits can educate women on their legal rights, including leave and breastfeeding at the workplace. Employers should also be reminded that Indian law grants every woman employee the right to pregnancy-related benefits, including crèche facilities, nursing breaks, and return to work after maternity leave.
India’s maternity benefits laws need reform to be truly effective. Improving enforcement mechanisms, sensitising employers on their obligations, and extending maternity benefits to cover the informal sector will go a long way in promoting gender equality at the workplace. Maternity protection in India is a matter of both law and policy addressing the challenges will require not just legislative action but also enhanced compliance and enforcement mechanisms.
Conclusion
A law that is only on paper is a promise delayed. The Indian maternity benefit policy communicates to women that they are valued as workers and mothers, yet the informal sector, where India’s women are employed in large numbers, does not receive this message. Only when the cost of motherhood as embedded in the informal sector’s wage-setting mechanisms is taken out, will the Indian maternity law cease to be a promise delayed.
The issue of maternity is not only a labour policy one, then; rather, it is a constitutional issue in India, since the Constitution enshrines equality before the law for all. A maternity benefit policy that simultaneously promotes the value of motherhood yet allows employers to view pregnancy as a risk factor to economic productivity fails in its very purpose. To overcome the discrepancy, India needs a policy that effectively deals with the issue of pregnancy and encourages employers to view maternity support as integral to having productive, diverse, and therefore stronger workplaces.
