The Amendment to the Maternity Bill, which seemed to be long overdue, is now facing some serious reconsideration by entrepreneurs due to its skewed philosophy. Hailed in the beginning, as a means to bridge the gender gap in a country that continually ranks at the bottom of the gender equity index, the shortcomings in this bill are now being realized. While the most prominent flaw in this bill is its emphasis on employees in the new age services sector, there are several other shortcomings that showcase the flaw in the legislation.
Firstly, the need for expansion of the existing benefit lacks a scientific basis. The previous maternity protection was well conceived act which offered 12 weeks of maternity leave and neatly described the pre confinement and post confinement period while offering lucidity on all aspects including miscarriages. There is no logical reason as to why “26 weeks” has suddenly become the right quantum of maternity leave. The ILO convention recommends 14 weeks of maternity leave which in any case India was close to in observance by way of 12 weeks. The most developed economy, the United States of America does not offer any clear protection except job security after 12 weeks of unpaid leave or availing accrued leave subject to certain conditions. Very difficult to understand why India should compete with Canada or Norway in extending such benefits when the ground reality does not appear to suggest this demand except for championing a cause of very limited section of the society.
Scientifically there appears no basis for this change and one wonders whether the aim of the government is to ensure bonding with the child which is more a social concern given the changing lifestyles and ideally should not be addressed through a window of vacation? Even the healthcare industry has not stipulated such terms as to what amount of time constitutes as the optimum time post maternity. The only suggested provision from the health care industry is the breastfeeding of the child upto a period which was a part of Factories Act and is now applicable to Shops as well though the provisions have a conflict.
Changes being made to labour laws are done in order to suit the large industries. The new age services sector which opened a large opportunity for women in skilled and intellectual jobs appear to be the only ones which can afford this change of providing a long leave and an opportunity of working from home. Brick and mortar industry can neither afford this period of leave nor can provide any such possibility of working from home. Mere aping the west does not make India a better employee friendly nation and we must focus on needs and customs which are prevalent locally.
Another amendment to this law has been the extension of the maternity benefits only to the first two children. Therefore, a woman who is carrying her third child will only get a maternity leave of 12 weeks as opposed to the 26 weeks for her first two children. Unlike China, we do not follow a one / two children policy; hence it makes no reasonable sense to extend the benefits only to the first two children.
The topic of surrogacy has also not been addressed clearly. Surrogacy has been completely misconstrued although it’s a 100 million dollar industry. The bill states that the person who is adopting the baby post surrogacy is entitled to a maternity leave to be able to bond with the child. While this bill aims at providing relief to a commissioning or adopting mother, the government has brought out another legislation on surrogacy making it near impossible to commission surrogacy given the restrictions thereon and defeats the provisions under this bill pretty much
Laws that endorse gender equality are great in theory but they should be present inherently within the enterprise and should not be cast as a legal obligation. It is the responsibility of the government to push industry in recognizing such benefits voluntarily and not pushed down as an obligation. These laws are not something that can be imposed on every business or industry. To an SME or a startup with say 20 or 25 employees, a 26 week of absence is a significant loss as they operate on thin margins. This kind of scenario perpetually kills the enterprise and renders some of the jobs redundant in anticipation; therefore a businessman must have the leeway of adopting policies that suit his enterprise or industry.
Faced with an increasing minimum wage, increased P F / ESI contribution coupled with increased Bonus and the new leave provisions of this bill, Make in India appears tougher than ever.
The crux of the issue is that there will be a hesitation to employ women after marriage. Questions such as “Are you married” and “How long have you been married” are commonly asked during interviews. Data privacy laws prevalent in developed nations are not fully adopted in India and hence without a legal obligation prohibiting such questions from being asked during interviews it would be not easy for women to get employed in critical jobs.
An absence of 26 weeks or six months is not easy to manage even from skill / knowledge management perspective for the woman employee who would need another 3 months to 4 months to get back to her routine of work. Such a massive absence can neither be substituted by a temporary job nor managed by system without affecting productivity. We are pointing fingers at an entrepreneur for defaults in loans and performance and a free economy should provide a free hand to such entrepreneur and not add so many obligations at a time. The focus for Make in India should be empower entrepreneurs and not hold them by the scruff.
The trend should be to facilitate a conscious call of observance of the labour law and not impose labour law on everyone. The whole concept is getting twisted and turned around by legislation in an attempt to show that they are women friendly and are catering to their needs. This law should have been provided to the industry as an option with the government incentivizing those who facilitate it. In the US, there is a system of minority business enterprise in which tax credit is offered to those who proactively observe it. Similarly, the Indian government should play a facilitating role instead of that of a stern school headmaster.
While the bold move made by the government warrants credit, these loopholes in the bill deserve careful reflection and deliberation. There is a tendency to make a bill to show that the government is women friendly, without ensuring that all loose ends are tied up. Therefore what most companies will resort to is underemployment of women.