Analyzing Maternity Benefits under the Social Security Code
Introduction
The general idea and discussion surrounding the concept of social security talks about the element of healthcare, income security (specially in event of unemployment, sickness or any other condition which requires medical assistance), maternity benefits as well as loss of an earning family member[i]; it aims to give a sense of surety and security to the workers of an organization, thereby acting as a safety net in form of a government aid through an executive order or a legislative draft which helps them lead a healthy and a secured lifestyle in event of unforeseeable circumstances. While it has been declared as a basic Human Right through the various institutions falling under the ambit of the United Nations[ii], the other side of the table argues that adhering to the standards determined by such international bodies is an issue subject to unique and varying circumstances in each country, thereby focusing on the undertones of socio-economic conditions of every nation and the laws framed in light of the same. Bringing the discussion to the Indian Jurisdiction, the relevant code is the Code on Social Security, which highlights the major elements of social security in light of the Indian Society; these range from discussion of themes like the hierarchy of Social Security Organizations and Employees’ State Insurance Corporation to Determination of Maternity Benefits and Employee’s Compensation. This code not only covers the organized sector of the Indian Economy, but also fends for the unorganized sector, gig workers as well as platform workers; thereby expanding its scope to almost every contributor of the Gross National Product.
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Maternity Benefits Under Code On Social Security
The discussion surrounding the Maternity Benefits opens up with Chapter VI of the Code. On having a precursory look, one can appreciate the contingencies brought under consideration as well as the articulation of the code. However, on a closer look and on understanding the implementation of the same, a different picture of the same is painted before the viewer.
Narrow Perspective Of The Code
The Code on Social Security, while attempts to bring under its purview the various states of maternity, which include Commissioning, Adoptive and Biological mothers, it fails to operative effectively in the contemporary scenario, in light of quintessential social tints of gender equality, the need of active involvement of both the parents during the upbringing of the child as well as addressing the dichotomy of professional and domestic identities of a woman. It conveniently circumvents the idea of paternity leaves and puts all the burden of the upbringing of child(ren) onto the mother. At this juncture, the example European Union comes into the perspective as it plays a leading role in such instances by drafting legislations which ensure gender equality in roles played at domestic as well as professional front. It gives equal weightage to maternity and paternity leaves, thereby using the umbrella term ‘Parental Leaves’ to denote the same, giving equal leaves to both the parents. In light of this, it can be noted that the idea of paternity leaves should also be inserted under Section 60 of the Code[iii]. Thus, the idea of gender equality and equal division of labour between the genders is a glaring insufficiency observed in the Code on Social Security.
Involvement of State
Being a code in favor of the workers and along the idea of India being a Welfare State, the code lacks grossly in ensuring a seamless functioning of the institutions by providing sufficient infrastructure from the end of the State.
As clearly outlined in section 67 of the Social Security Code, as prescribed by the Central Government, the Employer needs to provide for a creche as well as common facilities within approachable distance of the workplace. On analyzing this provision from the perspective of the employer, we observe that the sole responsibility of providing such facilities lies on the Employer, stemming through the government mandated guidelines. It not only points towards additional expenses from the pocket of the employer, but also shows a void in place of a potential incentivization from the state. A possible solution to this can be an active involvement of the state in ensuring that all workplaces are equipped with such facilities; the data of organized and unorganized workplaces can be gathered at district and block levels, funding of which can be divided between State and the Center equally, as the topic of Social Security and Employment falls under Concurrent List in the Seventh Schedule of the Constitution. [iv] This division of responsibility and active allocation of funds from the state can act as another layer of checks when it comes to ensuring social security at the root level.
Implementational Challenges
On understanding the procedural challenges, the case of The Union of India vs M. Asiya Begum[v] comes into the forefront, wherein the petitioner was a worker employed by the Central Government and hence was subject to the Central Civil Services (Leave) Rules, 1972. As per the provisions, maternity benefit could be availed only upto two surviving children; however, the petitioner in the case gave birth to twins in her first delivery and was given her fair share of leaves of upto 180 days of maternity period. However, in her second delivery, the question ‘whether the maternity benefit could still be availed as it would be her third child, from second delivery’ came to the forefront. It brought forth a unique need of a liberal and unconventional interpretation of the existing framework. In light of the same, it can be observed that in exceptional circumstances, the courts need to step away from the literal interpretation of the statutes and guidelines, thereby understanding the extraordinary circumstances and giving a judgement in consideration of the unique set of facts that came with each case. We also observe a lack of clarity as a challenge in implementation stemming from the ambiguous approach seemingly adopted in the legislation of this code.
Conclusion and Macro Analysis
The above discussion attempts to understand the Social Security Code in light of its efficacy in terms the Maternity Benefits. We adopt an analytical perspective and attempt to provide solutions to the existing loopholes. At certain instances, take a step forward and compare this Code with International Legislations, with an aim to solve the challenge this code poses before us. We observe that the code strongly lacks a gender-neutral approach by entitling the mother to all forms of benefits arising out of the initial stages of parenthood, when it should ideally be giving certain privileges to the father of the child as well.
The code also needs to understand the unique set of contingencies a complex journey like pregnancy can bring forth, not only to the working female, but also to other stakeholders. It needs to bring under its consideration, the various repercussions, such as the post-partum effects on the physical and mental health of the parents, specially, the mother. Thus, we note that the scope of the code is very narrow and it limits itself to certain situations only. It majorly lacks in understanding and addressing the implementational issues and puts the burden mostly on the Employer to provide for the paid leaves as well as sufficient facilities for the working mothers, which most of the institutional workplaces severely lack, let alone the workplaces falling under the unorganized sector. We also observe that the legislative drafting is that of an ambiguous nature, making the Code very unrealistic while operating, as observed in the Asiya Begum Case. Thus, we conclude that while the inclusion of Maternity Benefits in the Social Security Code is a strong and positive step taken by the Legislature, there still remains a lot of work to be done in order to make this Code effective and efficient in the contemporary Indian Society.
Author: Ishika Kamboj, A student at Jindal Global Law School, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing.
REFRENCES
[i] Facts On Social Security (International Labour Organization) https://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/documents/publication/wcms_067588.pdf accessed 8 October 2022
[ii] Ibid
[iii] Clause 22, ‘DIRECTIVE (EU) 2019/1152 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL Of 20 June 2019, On Transparent And Predictable Working Conditions In The European Union’ [2019] Official Journal of the European Union https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019L1152&rid=3 accessed 8 October 2022
[iv] Entry 23, List III, 7th Schedule, Constitution of India
[v] WA No. 4343 of 2019