The Maternity Benefits Act of 1961 has been a key piece of legislation in India, enhanced by transformative amendments in 2017 and further expanded under the Code on Social Security, 2020. These improvements include extended maternity leave, work-from-home options, mandatory workplace creches, and benefits for adoptive and commissioning mothers. However, many women are still underserved, particularly in the unorganised construction sector. Although some state schemes provide minimal maternity benefits to registered workers, the support is woefully inadequate and limited to just two instances. This blog, understanding the maternity benefits, highlights the unique challenges these mothers face, advocating for a more inclusive framework for maternity benefits rooted in social justice and equality, so that no mother is overlooked.
Introduction
India’s workforce is characterized by its diversity, with a significant number of workers engaged in the informal sector. Among these, building and other construction workers (BOCW) represent a substantial group that plays a crucial role in the nation's infrastructure and development. However, they often face instability, dangerous working environments, and insufficient social security. In response to these challenges, the Indian government has initiated reforms to provide maternity benefits to female construction workers, most notably through the Social Security Code, 2020.
India's Maternity Benefit Act of 1961, along with the significant amendments made in 2017, has been termed a potential "Game Changer" by various commentators. This is largely due to features such as the extension of maternity leave from 12 to 26 weeks, provisions for work-from-home options, the requirement for creche facilities in businesses with over 50 employees, and the inclusion of maternity benefits for adoptive and commissioning mothers. With the introduction of the Code on Social Security, 2020, these maternity benefit provisions have been incorporated into its framework.
However, it is essential to note that workers in the unorganised sector do not have direct access to maternity benefits under Chapter VI of the Code. The Central Government is authorized to create welfare schemes for these unorganised workers concerning various issues, including maternity benefits. This raises questions about the effectiveness of these provisions in India, especially considering that more than 90% of the workforce is in the unorganised sector. This paper aims to draw attention to the disparities caused by this exclusion,explicitlyy focusing on the challenges faced by building and other construction workers (BOC workers) from a social justice standpoint in the absence of maternity benefits. It examines the intersection of gender discrimination and the financial difficulties encountered by female workers in the unorganised sector, which further exacerbate their challenges. This blog explores the structure of maternity benefits available for construction workers under the Social Security Code, 2020, the ongoing challenges, and the necessary steps for improved implementation moving forward.
Overview of SS Code,2020
The Code on Social Security, 2020 (SS Code) integrates and supersedes nine central labor laws associated with social security, which include:
- The Maternity Benefit Act, 1961
- The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996
- The Employees’ State Insurance Act, 1948
- The Unorganised Workers’ Social Security Act, 2008
The Purpose of this code is to ensure social security coverage for all employees and workers, including those engaged in the unorganised sector.
Who are the Building and other construction workers
In the SS code 2020, as defined by the SS Code, building and other construction workers are those involved in activities such as constructing, modifying, repairing, maintaining, or demolishing structures, including buildings, roads, railways, and power plants. These workers often migrate from rural areas to urban centers and are typically hired on a daily wage or through contracts, lacking permanent job security.
Due to the informal and transient nature of their work, these individuals have historically been left out of social security programs. The SS Code seeks to address this issue by integrating them into a formal benefits framework.
Maternity Benefits under the SS Code
Under Chapter VI of the SS Code, maternity benefits are explicitly discussed. The provisions from the Maternity Benefit Act, 1961 are absorbed and extended to more categories of women workers, including those in the construction sector
provide provisions in detail:-
Eligibility:
- This eligibility extends to women in the unorganised sector (like BOCW), subject to their registration under the relevant welfare boards 2..A female employee must have worked for at least 80 days in the 12 months preceding the date of expected delivery. Duration of Maternity Leave:
- 26 weeks of paid maternity leave for the birth of the first two children.
For the third child onwards, 12 weeks of leave.
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An additional 12 weeks of leave for adopting or commissioning mothers (surrogacy)
Cash Benefits: Maternity benefit equals the average daily wage for the period of actual absence.
- Payment is to be made directly to the woman.
- Medical Bonus: Women not entitled to prenatal and postnatal care from the employer receive a medical bonus (amount to be notified by the government).
- Prohibition of Employment: Employers are prohibited from employing women during the maternity leave period. Dismissal or discharge due to maternity leave is unlawful.
- Creche Facility: Every establishment employing 50 or more workers must provide a creche facility.
Maternity benefits for construction workers especially fall in the ambit of unorganised workers. This registration is a prerequisite to claiming maternity and other welfare benefits. Once registered with the BOCW Board, you are then eligible for Benefits.
Building and other construction (BOC) workers are a specific group within the unorganised sector facing significant disadvantages due to their precarious circumstances, as will be elaborated in subsequent sections. According to Section 18 of the BOC Workers Act, 1996, State Welfare Boards are mandated to be established. Furthermore, Section 22(g) of this Act tasks these Boards with the responsibility to "disburse maternity benefits to eligible female workers." In light of this, various states have developed their own schemes offering maternity benefits, albeit with varying amounts based on specific criteria. Below is a summary of these schemes:
Now, here we illustrate the data accordingly, state-wise, the maternity disbursement of maternity benefits to eligible female workers. Here, the state of Assam gives a 20,000 benefit amount per/head, allowed only twice. The Uttar Pradesh gives a 3000 only for registered construction workers, a one-time assistance limited to two children. The state of Maharashtra gives 15000 reimbursement for normal delivery, 20,000 for surgical delivery, and the other details mentioned are Contraceptive surgery after the first girl child is born. Delhi gives the benefits of 30,000 for women members and wives of male members, limited to two children, and Andhra Pradesh gives 20,000 for women workers, limited to two children.
In various states across India, maternity benefits for female workers reflect differing levels of support. For instance, in Jammu & Kashmir, female workers receive a one-time benefit of Rs. 5,000, but this is limited to two children. Rajasthan offers a relatively higher amount of Rs. 21,000 for male children and Rs. 20,000 for female children. In Madhya Pradesh, the amount is unspecified and is provided during the last trimester, with the stipulation that beneficiaries must be at least 20 years old at the time of delivery and limited to two children. Karnataka also has a tiered benefit structure, offering Rs. 20,000 for male children and Rs. 30,000 for female children, again limited to two children. In Kerala, pregnant workers receive a benefit of Rs. 15,000, also restricted to two children. Lastly, Punjab provides Rs. 21,000 for female workers and only Rs. 5,000 for male workers, likewise limited to two children. Each of these state schemes attempts to support female workers during maternity, but varies significantly in terms of financial support and restrictions.
Various Indian states provide financial assistance to support families during maternity and child-rearing. Haryana offers Rs. 36,000 for maternity and nutrition, limited to two male children or three female. In Nagaland, Rs. 6,000 is available for wives, restricted to two instances. Meghalaya provides Rs. 1,000 during maternity, also limited to two occasions. Manipur allocates Rs. 6,000 for female building workers, available for two miscarriages. Odisha offers Rs. 8,000 after one year, while the Andaman and Nicobar Islands support women employees with Rs. 20,000 and male employees with Rs. 10,000 under specific conditions. Telangana provides Rs. 30,000 for women and families with two daughters, capped at two children. Tripura gives Rs. 5,000 for registered female construction workers, and Mizoram offers Rs. 5,000. These programs reflect varied state approaches to enhancing maternal and child health support.
The disparity in financial assistance across states is striking, with amounts ranging from Rs. 1,000 to Rs. 36,000 per delivery. These sums are often insufficient to meet even the medical expenses associated with pregnancy, let alone the costs of post-natal care. Moreover, most states impose two common requirements: (i) registration with the Welfare Board, and (ii) a limitation to maternity benefits for just two children. It has been noted that registration can be a burdensome process in many states, often requiring annual renewals and proof of employment in the sector for at least a year. As a result, the effective implementation of these schemes comes into question.
The SS Code provides a legal framework for centralizing and unifying these benefits, ensuring consistent and enforceable entitlements nationwide.
Implementation Framework
The Code requires the establishment of a centralised Social Security Fund. It also includes provisions for Aadhaar-linked registration of unorganised workers through a national portal.
Construction workers are required to:
- Register with the welfare board in their respective states.
- Provide Aadhaar details, employment information, and proof of age.
- Regularly update their information to maintain eligibility for ongoing benefits.
Welfare Boards are tasked with:
- Approving and distributing maternity benefits.
- Raising awareness among female construction workers.
- Collaborating with e-SHRAM and other digital databases for effective targeting.
An Added Challenge?
Women workers in the construction industry experience gender-based discrimination not only in India but globally. Key areas such as skills training, education opportunities, issues related to sexual harassment, and prospects for career advancement highlight this gender disparity. Additionally, these workers often struggle with limited economic clout due to low wages, wage inequality, and the relative significance of their earnings compared to those of men. Because men are typically viewed as the primary earners in households, women's work and income are often undervalued. Kimberlé Crenshaw’s intersectionality theory emphasises that various identities- such as race, gender, and class- intersect and shape individual experiences. Just as Crenshaw illustrated the compounded effects of race and gender on Black women, the discrimination against female building and construction workers is significantly influenced by both gender and economic factors.
Focusing specifically on maternity benefits, an interesting trend from the previous section indicates that, in most states, male workers do not receive any financial compensation at all. In some instances, the sums provided to male employees for their wives are considerably lower than what female employees receive. Such practices exacerbate discrimination, leading employers to avoid hiring women or to terminate them upon pregnancy. This is due to the financial responsibility of providing maternity benefits and the loss of the employee for an extended period. The author believes that Telangana’s policy, which grants financial benefits to female workers, the wives of male workers, and two daughters of workers, exemplifies an effective approach to combat discrimination, promote equality, and offer comprehensive protection to workers and their families.
From a demographic perspective, Western Indian states often show a bias against the birth of female children, reflecting entrenched patriarchal values. For instance, Rajasthan offers a higher maternity benefit for male children than for females, while Maharashtra mandates contraceptive surgery after the first girl is born. This infringes on the mother's autonomy and allows the state to impose personal choices. In contrast, South India is noted for its matrilineal traditions and relatively better gender dynamics. This is evident in maternity benefits; for example, Karnataka provides a higher benefit for the birth of a girl child, and Telangana, Andhra Pradesh, and Kerala do not offer extra benefits for male children or impose negative conditions for females.
Additionally, the type of employment or recruitment of female workers is another factor contributing to discrimination. Since many BOC workers are employed on a contractual basis rather than through stable, long-term contracts, this aspect warrants examination. Benefits that are available to regularly employed workers often do not extend to contract workers, necessitating a closer look at how maternity benefits are applied in these situations. The Jharkhand High Court recently ruled that both contractual and non-contractual workers are equally entitled to maternity benefits, based on the definitions provided in the Maternity Benefit Act. Such judicial rulings are crucial in addressing the various forms of discrimination faced by women workers, especially given that a lack of coverage under the Code’s maternity provisions represents an additional challenge.
Judicial Recognition
In terms of judicial developments, significant cases such as Municipal Corporation of Delhi v. Female Workers Muster Roll and Anshu Rani v. State of U.P. have clarified that female workers on contractual terms are entitled to 26 weeks of maternity leave. These rulings highlight the importance of extending such provisions to women across the unorganised sector as well. It is vital that maternity benefits be universally accessible; any differentiation between the organised and unorganised sectors in this context constitutes a violation of Articles 14, 15, and 21 of the Indian Constitution, which ensures fundamental rights related to equality, non-discrimination, and the right to life and personal liberty.
While these rights are generally enforceable against the 'state,' as per Article 12 of the Constitution, certain principles of labour laws extend these protections to private entities as well. Consequently, private companies are obligated to comply with these maternity benefit provisions and can be held accountable for any violations. This legal framework calls for a more inclusive approach, ensuring that the rights of all women workers, regardless of their employment status, are safeguarded.
Conclusion
It has been noted that fewer than 1% of women in the Indian labor force actually benefit from maternity laws, and a lack of awareness regarding these rights only worsens the issue. The limited scope of the law has been a concern since the inception of the Maternity Benefit Act, and the Social Security Code represents a missed opportunity for lawmakers to address this shortcoming. Women working in the building and other construction sectors encounter several challenges, with gender discrimination being the most prominent. While this paper has focused on the inaccessibility of maternity benefits for BOC workers, similar issues are prevalent in other informal sectors as well.
In light of these realities, simply granting the government the power to implement schemes for unorganised workers is inadequate. It is crucial to extend maternity benefits to all workers. Amending the Social Security Code would be an effective means to achieve this, especially since the Code is still in its early stages and has not yet faced significant legal challenges. Furthermore, the various state schemes should be better aligned to address the stark differences among them. One potential measure is to expand the maternity benefits to male workers for their spouses, albeit under somewhat stricter criteria compared to those for female employees. Making this compulsory could encourage employers to hire more women, as they would need to provide equivalent maternity benefits to male workers. Nonetheless, as a foundational step, granting all women direct access to the provisions of Chapter VI of the Code could significantly transform India's maternity benefit legislation, setting a precedent for other countries worldwide.
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