A construction site worker, Tiniben, worked through fever in the seventh month of her pregnancy in Vadodara, Gujarat. She returned home with her husband to their village in Dahod district to deliver her baby. She got no paid leave and could not hold on to the job.

On August 11, Rajya Sabha passed amendments to the Maternity Benefit Act, 1961, increasing the period of maternity leave from 12 weeks to 26 weeks, which is over six months. The amended law also mandates a company to have a creche if they have more than 50 women employees.

But this covers only the organised formal sector of work and leaves out people like Tiniben.

As health experts note, it is crucial for mothers to be close to their babies for at least the first 24 months. The World Health Organisation recommends that every child should be breastfed within an hour of birth and given only breast milk for their first six months of life. Breastfeeding should ideally continue up to the age of two, along with complementary food. In India, proper breastfeeding could reduce thousands of child deaths and episodes of diarrhoea and pneumonia annually.

“We welcome this amendment,” said Sudeshna Sengupta of the Alliance for the Right to Early Childhood Development. “At least for the first time, some women would get the benefit of having six months paid leave. But this would apply only to 18 lakh women.” Sengupta said there are 2.97 crore pregnant women in the country any given time. “See how many women we are leaving out,” she added.

Activists working on the labour rights of women were disappointed with the amendments. Some of them ran a campaign in March and May this year lobbying for maternity benefits with the government. They held a public hearing in Delhi to document the issues related to the unorganised sector. Tiniben had deposed before them.

Narrow definition

Any woman working in agricultural, commercial or industrial establishments or shops with 10 persons or more is entitled to benefits under the Act. This leaves out many women who work from home – for instance, to roll bidis – or work at very small establishments, often without a fixed employer. “These women are left out and need the salary support,” said Jasodhara Dasgupta of Sahayog, a non-profit that works for the health rights of women in Lucknow. "They cannot keep the baby at home alone and go back to work." If a woman does not have a fixed employer, it should not mean that the woman is not entitled to benefits, the campaigners said.

In 2007, a report prepared by the National Commission for Enterprises in Unorganised and Informal Sector said that 96% of the women work in the unorganised sector.

Said Dipa Sinha, a right to food campaigner, who also looks at maternity rights and child nutrition: “The amendment should have expanded the definition of a working woman. Many working women do not even have an identified employer. Some women work on their own farms.”

Sinha said the campaigners were trying to work out a system where both the State and employers would take more responsibility for these women. The employers could be made to possibly contribute to a welfare fund and women could be given cash entitlements, she said.

Facing discrimination 

The amendment law has a peculiar rider. If a woman has two or more children, the maternity benefits remain just 12 weeks. This penalises women who have more children. “Women who have more than two children do not necessarily choose to get pregnant,” said Sinha. "Many have no reproductive rights, or have no access to contraception."

Besides, it penalises the third child too, who would be deprived of nutritional benefits of breastfeeding.

Dasgupta said that they will challenge this part of the amendment if it becomes a law.

Implementation of the law

Currently, labour inspectors are supposed to hold regular checks to see if the law is being implemented. For instance, under the new Factory Act, any establishment with more than 30 workers is supposed to maintain a creche.

“In reality, if you go to the creche, they will not keep more than 15 children,” said KR Jayaram, from the Garment and Textile Workers Union in Bengaluru. “Many also refuse to keep children under one year. These are unwritten restrictions.”

Women are often sacked or asked to leave during their pregnancy or after childbirth in contravention of the Act, activists said. They have been trying to get data on the action taken by labour inspectors against the employers who have contravened the provisions of the Act.

Sengupta said the Alliance had done a small study with garment workers at Gurugram. “We could not find a single pregnant woman in the entire area,” she said. “It is an unwritten rule that the women have to leave the company before delivering a child. There is no room for negotiation.”