Employment LawMATERNITY LEAVE FOR CONTRACTUAL EMPLOYEES

 INTRODUCTION

Maternity leave is a pivotal site of intersectionality between labour rights, gender justice, and public health policy. It acknowledges the biological and social imperative to assist women through pregnancy, childbirth, and early childcare. In India, although the legal environment provides a seemingly strong legal framework for maternity benefits under the Maternity Benefit Act, 1961, a vast majority of working women, especially those in contractual, casual, or informal arrangements, are de facto excluded. This exclusion is not only a procedural lapse but a substantive denial of dignity and equality promised under the Constitution of India. Article 42 of the Constitution instructs the State to provide for securing just and humane conditions of work and for maternity relief. In addition, Articles 14 and 15 forbid discrimination and promise equality before the law. Still, the everyday life of an overwhelming majority of Indian women workers manifests a straightforward divergence from these constitutional ideals.

EXISTING LEGAL FRAMEWORK: SCOPE, ELIGIBILITY, AND DURATION

The Maternity Benefit Act, 1961 was passed to govern women’s employment when they are pregnant and grant them certain benefits. After its amendment in 2017, the Act makes women eligible for 26 weeks of paid maternity leave for their first two children and 12 weeks thereafter. It also makes provision for medical allowances, nursing breaks, and immunity from dismissal during maternity leave. By Section 2 of the Act, its provisions are applicable to all establishments with ten or more workers, among which are factories, mines, plantations, and government offices. Claims to these benefits are subject to a woman having worked for a minimum of 80 days within twelve months from her expected date of delivery.

But the Act does not specifically differentiate between contractual and permanent employees, and as a result, there is general exclusion of contractual employees. Employers have been using this loophole extensively, arguing that employees who are on contract or scheme basis are excluded under the Act. In fact, Section 27 of the Maternity Benefit Act categorically mentions that its provisions shall override any repugnant provisions in a contract, agreement, or service condition, and that at any point of time a woman can negotiate for enhanced benefits. Regardless of such legislative clarity, actual enforcement on the ground is patchy, and in such circumstances, access to maternity benefits becomes a privilege according to one’s status as an employee and not a right under the law.

THE PREVALENCE OF INFORMALITY AND THE SCALE OF EXCLUSION

The bleak reality of India’s labour market is also evident from the widespread contractualisation and informality of employment, particularly for women. A whopping 93.5% of employed women in India lack access to workplace maternity benefits, a 2024 IndiaSpend analysis found. As highlighted in the article “Reproductive Rights and Exclusionary Wrongs: Maternity Benefits” (JSTOR, 2022), the majority of women are employed in informal sectors, small businesses, or under government programs as Anganwadi workers, ASHA workers, mid-day meal helpers, and sanitation workers, sectors that are either nominally excluded or functionally overlooked under prevailing implementation frameworks. Numerous employers strategically employ fixed-term employment to exclude benefits, essentially circumventing the intent of labour laws.

This systemic exclusion disproportionately disadvantages women at the nexus of gender, class, and caste. The IndiaSpend report also states that employer-funded maternity schemes have a potential to generate perverse incentives. Smaller firms consider pregnancy-related expenses as a drain and respond by discriminating against hiring women of reproductive age. Various research studies, such as the 2018 impact evaluation of the Maternity Benefit (Amendment) Act, underscore how businesses, especially those in the small-scale and informal sector, replace or deliberately do not employ women because of the financial burdens it poses.

JUDICIAL RECOGNITION AND INTERPRETATION

Judiciary has been instrumental in expanding maternity benefits to the excluded sections by formal administrative actions. In Municipal Corporation of Delhi v. Female Workers (Muster Roll), (2000) 3 SCC 224, the Hon’ble Supreme Court had before it the issue of whether female workers working on muster roll or daily wage basis could claim maternity benefits. The Hon’ble Court unambiguously held that these women, irrespective of the informal nature of their employment, are qualified to receive all the benefits under the Maternity Benefit Act. The judgment also reiterated the significance of Article 42 and observed that India, being a signatory to a number of international agreements such as the Convention on the Elimination of All Forms of Discrimination Against Women (hereinafter referred to as “CEDAW”), is bound to adopt gender-fair labour policies. The Hon’ble Court aptly put that human rights are supreme and cannot be undermined by technicalities of employment status.

Likewise, in Anindita Mishra v. State of Odisha, 2022 (III) ILR-CUT-438, the Hon’ble Orissa High Court reasserted the preponderant character of Section 27 of the Act and ordered the extension of maternity benefits to a contractual government employee by the state. The Hon’ble High Court made it clear that the term of employment, whether temporary or permanent, does not impinge on a woman’s statutory right to maternity leave. The Hon’ble Karnataka High Court, in B. S. Rajeshwari v. State of Karnataka, Writ Petition No.10677 of 2020, seconded the same notion in a 2020 order relating to sanitation workers declaring that the government cannot abdicate its responsibility by outsourcing jobs through the contractor system.

INTERNATIONAL LAW AND COMPARATIVE ANALYSIS

India’s commitment to international human rights treaties strengthens the national legal commitment to providing equal maternity protection. Article 10(2) of the International Covenant on Economic, Social and Cultural Rights (hereinafter referred to as “ICESCR”) requires special protection for mothers for a reasonable period before and after giving birth, such as paid or leave with sufficient social security benefits. Article 11 of CEDAW requires state parties to provide equal employment rights to women, such as maternity leave with pay, protection against dismissal during pregnancy, and protection against discrimination.

The Delhi Municipal Corporation case saw the Hon’ble Supreme Court directly refer to these conventions, highlighting that, “being the capital of a signatory country, Delhi needs to set an example in international standards.” These instruments are not only aspirational but are part of India’s interpretative paradigm for constitutional and statutory rights. Read together with Articles 14 and 15 of the Indian Constitution, these international norms oblige the State to end systemic discrimination against contractual women workers and provide maternity protection as a right.

CHALLENGES AND GAPS

The most glaring challenge is still the lack of enforcement. Even with judicial support and legislative mandate, the application of maternity benefits to contractual employees is impeded by administrative inaction, unmonitored functioning, and dispersed governance. The lack of a single definition of ’employee’ in labour legislations only serves to make the problem worse, enabling employers to use it as a loophole. There is also an evident resistance from the private sector, especially small businesses, who assert that the economic cost of maternity leave negatively impacts their viability. Such assertions, although not completely baseless, cannot be used to justify the systematic denial of rights recognized by the constitution and internationally.

Yet another challenge is invisibilisation of women’s reproductive labour at the policy level. Maternity still being perceived as a personal as opposed to a public issue continues to impact entitlements’ structure and delivery. This viewpoint ignores that reproduction is also a social activity with economic consequences and its costs have to be shared among the state, society, and employers.

SUGGESTIONS AND THE WAY FORWARD

To address these issues, legislative amendment and administrative commitment are both needed:

• First, the Maternity Benefit Act must be amended so that ’employee’ is defined clearly in such a way as to include all categories of employees, including those in contractual, daily wage, or fixed-term employment.
• Second, employers alone should not bear the expense of maternity benefits. A shared financing system supported by the government, particularly for small and medium enterprises, would reinforce compliance without imposing a heavy burden on individual firms.
• Enforcement has to be strengthened by frequent inspections, grievance redressal mechanisms available and strict penalties in case of default.
• Special awareness campaigns are also essential to educate women about their rights under the Act.
• Legal aid services made stronger would help women to enforce these rights effectively. In addition, providing childcare facilities and flexible work schemes can facilitate smooth return to work after maternity leave.

All these moves have to indicate an unwavering commitment to Articles 14 and 21 of the Constitution, to ensure equality before law and a life of dignity to all working women.

AMLEGALS REMARKS

The question of maternity leave for contract workers is perhaps the most urgent and least dealt-with challenge facing Indian labour jurisprudence. Jurisprudential development, both in consonance with constitutional imperatives and international standards, is indicative of a normative legal and ethical imperative, that maternity entitlements be available to all women regardless of the formal designation of the employment.

The analysis of the legal environment shows that although statutory provisions and judicial rulings are in the right direction, implementation loopholes and institutional exclusions are a key stumbling block. It is thus essential that all stakeholders, legislators, employers, courts, and civil society, join hands to construct a more equitable, inclusive, and compassionate labour environment. Maternity entitlements cannot be left to contractual conditions but have to be regarded as universal rights based on dignity, equality, and human rights.

-Team AMLEGALS assisted by Abhijeet Patra

For any queries or feedback, feel free to reach out to laksha.bhavnani@amlegals.com or mridusha.guha@amlegals.com