By Ritu Pipraiya
Introduction
On 19th of September, 2019, a division bench of Uttarakhand High Court held[1] that a female government employee is not entitled to maternity leave on her third pregnancy. The court relied on Rule 153 of U.P. Fundamental Rules, 1942 (hereinafter ‘the Rules’) made under Government of India Act, 1935 by the Governor. These rules determine the conditions of service of state government employees and were adopted by state of Uttarakhand. Earlier, the single judge bench of Uttarakhand High Court in July, 2018 had ruled[2] that female government employees are entitled to maternity leave even on their third pregnancy by relying on Section 27 of Maternity Benefit Act, 1961 and Article 42 of the Constitution of India.
Interpretation and Analysis
Maternity Benefit Act, 1961 (hereinafter ‘the Act’) provided for a paid leave of 12 weeks earlier but after the amendment[3] in 2017, the leave period is extended to 26 weeks for first and second pregnancy while for the third pregnancy, it is 12 weeks. Section 27 of the Act included the non-obstante clause which provides that the Act will supersede other inconsistent laws. The division bench has said that there is no clash between the Act and the Rules because according to Section 2, the Act is applicable to only factory, mine and plantation workers and the respondent was working in a hospital.[4] However, the Act in question is a social welfare legislation[5] and while construing it, the court must adopt beneficial construction[6] i.e. mischief or the suffering has to be suppressed and remedy is to be advanced. The Court applied strict construction[7] and created an exclusion which is beyond the object of the Act, i.e. to ensure that women’s economic activities do not threaten her health or that of her child and at the same time a woman’s reproductive role does not compromise her employment security.[8] The U.P. Fundamental Rules is special law as it deals with maternity leave of only state government employees whereas the Act is a general law when it deals with both public and private sector. Special laws prevail over general laws[9] but since the Act contains a non-obstante clause, general law will prevail here.[10] The Act came into force later in point of time and so it will have greater authority because it reflects the latest intention of legislature. The Act was promulgated in 1961 when women’s employment was not as diverse as today.[11] This reflects social and political advancement which has to be kept in mind while construing an old law. Context and historical background remain the guiding force, which in the present case is to ensure health and safety of the mother while providing adequate care and protection to the child during initial days.[12] Women with third or fourth pregnancy also require equal protection and limiting the benefit to only few will not serve the object of the Act as already mentioned before.
Fundamental Rights and DPSP
The court also rejected the contention that the Rules violated Article 42 of the Constitution of India for two reasons.[13] Firstly, Article 42 applies when a new law is framed and secondly, DPSPs are not enforceable.[14]
In this case, government was performing rule application action, also known as administrative action[15], wherein no new law is made but laws already made by legislature/executive are enforced. Also, these rules came before the establishment of Constitution of India and so Article 42 is not applicable retrospectively with respect to those acts done before the commencement of the Constitution of India.[16] However, as per Article 13, constitution being the ground norm can’t be violated when act in question is inconsistent with fundamental rights, provided it is done after such commencement.[17] Rules are outdated and so they need to be amended to be in conformity with the requirement of Article 42.
Furthermore, Articles 14[18] and 21[19] are also violated when women with third child are not given leave. Article 21 is violated because right to life can be exercised effectively only if they have the right to proper health care and protection while maintaining their liberty to take leave. Article 14 is violated because the distinction between first two children and the third child in the Act could be an intelligible differentia[20] (exception to right to equality) to control population but a further distinction between plantation/factory/mines and other establishments under Section 2 of the Act is unreasonable.
Section 2 talks about applicability of the Act and Section 2(1)(a) covers establishments. This section reflects a grey area as position of certain establishments like private sector, companies, education and health care institutions, etc. is not clear, giving rise to misleading interpretations. However, the provisions are not exhaustive and so, most of the sectors can be covered under the Act because meaning of ‘establishment’ under Section 2 mentions plantation, factory, mines and further uses the word ‘includes’, thereby making the meaning of establishment inclusive in nature. As per rules of interpretation, ‘establishment’ can therefore include other sectors as well apart from what is already mentioned.[21]
Population Control
Denying maternity leave for third child is justified in the name of population control[22]. This perpetrates injustice because a lot of factors affect reproductive choices of women like family pressure to have male child, or illiteracy coupled with poverty leading to little or no sex education, or just a lack of autonomy in decision making. Unfortunately, the burden lies on women because the only way to curb the gender role divide i.e. paternity leave is available only to Central Government employees and that too for 15 days only if he has less than two children.[23] Also, most of the men don’t avail paternity leave even if available due to fear of missing opportunities.[24]
Neither the Act nor rules were introduced to control population.[25] If a mother begets twins in her first or second pregnancy, she is still entitled to leave[26] but same is not applicable to a woman with three children in three different pregnancies and hence, the argument of population control doesn’t make sense here. Central Civil Services (leave) Rules provide maternity leave for adopting a child only if the mother doesn’t have two surviving children.[27] An adopted child doesn’t increase population as they are already born and therefore, neither the argument of population control stands nor the Rules are justified while denying leave for adopting third child. States like Assam[28] have started terminating services of female government employees on having more than two children. Instead of denying basic rights to a child already born, government should focus on incentivizing birth control, promote use of contraceptives, spread awareness and share the burden of employers. Currently, employers have to bear the costs alone while in countries like Singapore[29], the cost of leave for third and subsequent pregnancy is borne by government.
Other Laws
Apart from maternity leave, women receive entitlement of Rs. 6000[30] under National Food Security Act, 2013 (NFSA). NFSA applies to all women whereas a similar scheme of government called Pradhan Mantri Matru Vandana Yojana, 2017 gives Rs.5000[31] to only mothers of first child, thereby maintaining the distinction. Similarly, Indira Gandhi Mantritva Sahyog Yojana[32], 2010 is a conditional cash transfer scheme available for a mother only up to first two live births. WHO[33] recommends exclusive breastfeeding up to the age of 6 months along with basic amenities which can’t be denied even to third child. ILO also prescribes a leave of at least 12 weeks[34] for pregnant women, though 14 weeks is considered as ideal. The ILO’s Maternity Protection Convention[35], 2000 requires the employers to not let women perform tasks that are detrimental to her heath. The striking feature of this convention is that ‘woman’ & ‘child’ here includes every woman and child without any discrimination. Rule 29 of Working Journalist and Other Newspaper Employee’s (Condition of Service) and Miscellaneous Provisions Act, 1955 and Section 79 of Factory Worker’s Act, 1948 provide maternity leave but these acts are silent on third pregnancy. The Code on Social Security, 2019 (hereinafter ‘the Code’) proposes to simplify, amalgamate and rationalize 9 laws on social security including Maternity benefit Act, 1961. The bill is referred to Parliamentary Standing Committee on Labour. The Code prohibits employment immediately after delivery for 6 weeks. On a conjoint reading of section 61 (1) and 62 (3) of the Code, it appears that every woman is entitled to leave provided the maximum limit is followed which is 26 weeks for first two births and 12 weeks for the third birth.
All the laws mentioned till now were product of legislature except U.P. Fundamental Rules because they were made by pre-independence government and were further adopted by Government of India. The Rules, being product of executive who is not elected, do not represent the will of people in democratic India. As already discussed, the Rules are pre-constitutional laws and can therefore become void to the extent of inconsistency with fundamental rights for all acts done after commencement of the Constitution of India.[36]
Central Civil Services (leave) Rules, 1972 (hereinafter ‘CCS Rules’) is an example where under Rule 43(1), maternity leave on third pregnancy is prohibited by a law made by executive wing. CCS Rules were made by central government to regulate the terms and conditions of service of central government employees. Similar power is given to governor with respect to state. This power emanates from Article 309 of the Constitution of India and not from any statute made by legislature, thereby giving the Rules a status equivalent to that of law. However, the proviso to Article 309 makes it clear that this rule making power can be exercised only until a provision in that regard is made by legislature. The Act of 1961 came prior to CCS Rules and moreover, the Act being made by representatives of people will have primacy. Therefore, CCS Rules violate article 309 of the Constitution of India.
Conclusion
There are several laws on maternity leave covering same subject with conflicting provisions. Maternity Benefit Act was introduced by parliament in compliance with international labour standards[37] but somehow the states continue to apply their own rules and the object of having legislature is defeated. The rules of interpretation adopted by the court could have been benevolent. Though, DPSPs are not enforceable but the court ignored fundamental rights too. India still considers maternity benefit not as a right but a favour and this approach of judiciary needs to change.
The author, Ritu Pipraiya, is a law student at the National Law Institute University (NLIU), Bhopal.
[1] State of Uttarakhand v. Urmila Masih & Ors., 2019 SCC Online Utt 927.
[2] Urmila Masih v. State of Uttarakhand & Ors., 2019 LLR 57 (per Rajiv Sharma J.).
[3] The Maternity Benefit Act, 1961, §5, inserted vide The Maternity Benefit (Amendment) Act, 2017 (w.e.f. March 28, 2017).
[4] State of Uttarakhand v. Urmila Masih & Ors., 2019 SCC Online Utt 927, at 4.
[5] Management of Kallayar Estate, Jay Shree Tea and Industries Ltd. v. Chief Inspector of Plantation and Anr., (1999) 81 FLR 639.
[6] B. Shah v. Presiding Officer, Labour Court, Coimbatore & Ors., AIR 1978 SC 12, (per V.R Krishna Iyer J. & Jaswant Singh J.).
[7] State of Uttarakhand v. Urmila Masih & Ors., 2019 SCC Online Utt 927, ¶ 14-15.
[8] Shashi Bala, Implementation of maternity benefit, available at https://www.google.com/url?sa=t&source=web&rct=j&url=https://vvgnli.gov.in/sites/default/files/2012-099.pdf&ved=2ahUKEwibsv__9bPpAhVMcCsKHaMSDIQQFjAPegQICBAB&usg=AOvVaw07fZMtX5ApKIEkAWM_gEpX, (Last visited on May 14, 2020).
[9] Duhaime’s Law Dictionary, Generalia Specialibus Non Derogant, available at https://www.duhaime.org/LegalDictionary/G/GeneraliaSpecialibusNonDerogant.aspx, (Last visited on May 15, 2020).
[10] Kafaltiya A.B., Interpretation of Statutes, 317 (1st ed., 2008).
[11] Meera Vankipuram, Women’s Representation in Indian Companies Rises, available at https://www.livemint.com/news/india/women-s-representation-in-indian-companies-rises-11576086142768.html, (Last visited on May 15, 2020).
[12] whatishumanresource.com, Contractual Employees also entitled to Maternity Benefits, available at http://www.whatishumanresource.com/Maternity-Benefit-Act-1961, (Last visited on November 21, 2019).
[13] State of Uttarakhand v. Urmila Masih & Ors., 2019 SCC Online Utt 927, ¶ 19.
[14] State of Uttarakhand v. Urmila Masih & Ors., 2019 SCC Online Utt 927, ¶ 20.
[15] Legal India, What is rule application action or administrative action in administrative action, available at https://www.legalindia.com/question/what-is-rule-application-action-or-administrative-action-in-administrative-action/, (Last visited on May 15, 2020).
[16] Adithya Anil Variath, Article 13 and Pro Tanto Supremacy of the Constitution of India, 4 International Journal of Law 93 (May, 2018).
[17] The Constitution of India, 1950, Art. 13(1).
[18] Ruksana v. State of Haryana & Ors., 2011(2) SCT 789(P&H) (per Ranjan Gogoi C.J. & Kanwaljit Singh Ahluwalia J.).
[19] IAS Score, Gist of Rajya Sabha TV (RSTV): The Third Child Norms, available at https://iasscore.in/rs-tv/gist-of-rajya-sabha-tv-rstv-the-third-child-norms, (Last visited on November 21, 2019).
[20] Ruksana v. State of Haryana & Ors., 2011(2) SCT 789(P&H) (per Ranjan Gogoi C.J. & Kanwaljit Singh Ahluwalia J.).
[21] Sukumar Mukhopadhyay, How inclusive is ‘includes’, available at https://www.business-standard.com/article/economy-policy/how-inclusive-is-includes-107040201129_1.html, (Last visited on May 16, 2020).
[22] Supra note 19.
[23] James Vazquez, What Is The State of Paternity Leave In India, available at https://bel-india.com/what-is-the-state-of-paternity-leave-in-india/, (Last visited on May 17, 2020).
[24] Ipsita Bhattacharya, Is India Ready for Paternity Leave, Times Of India, June 16, 2019.
[25] Archana Parashar & Amita Dhanda, Introduction: Gender Problem in Law in Feminine Jurisprudence in India: Women’s Right 25, 26 (2008).
[26] J. Sharmila v. The Secretary to Government, Education Department & Ors., 2010 SCC Online Mad 5221.
[27] The Central Civil Services (leave) Rules, 1972, Rule 43-B.
[28] Manifest IAS, The Third Child Norms, available at https://www.manifestias.com/2019/10/08/the-third-child-norms/, (Last visited on November 21, 2019).
[29] Ministry of Manpower, Maternity leave eligibility and entitlement, available at https://www.mom.gov.sg/employment-practices/leave/maternity-leave/eligibility-and-entitlement, (Last visited on November 22, 2019).
[30] Bankbazaar, Union Budget 2019- Maternity Benefit Schemes Need a Boost, available at https://www.bankbazaar.com/tax/union-budget-maternity-benefit-schemes.html, (Last visited on November 21, 2019).
[31] Id.
[32] National Portal of India, Indira Gandhi Matritva Sahyog Yojana by Ministry of Women and Child Development, available at https://www.india.gov.in/indira-gandhi-matritva-sahyog-yojana-ministry-women-and-child-development, (Last visited on November 22, 2019).
[33] Supra note 28.
[34] International Labour Organisation, More than 120 Nations Provide Paid Maternity Leave, available at http://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_008009/lang–en/index.htm, (Last visited on November 23, 2019).
[35] International Labour Organisation, C183 – Maternity Protection Convention, 2000 (No. 183), available at https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C183, (Last visited on November 23, 2019).
[36] Supra note 16.
[37] International Labour Organisation, Lok Sabha passes the Maternity Benefit (Amendment) Bill, 2016, March 10, 2017, available at https://www.ilo.org/newdelhi/info/public/pr/WCMS_546856/lang-en/index.htm, (Last visited on May 17, 2020).
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