In an order passed recently, the Madras High Court directed the state’s attention to the implementation of maternity benefit laws in the country.
Among the various queries posed, Justice N Kirubakaran has also questioned the state on the possibility of including the right of a new born to be breastfed as a fundamental right under Article 21 of the Constitution.
The main matter concerned the admission of a woman to a Medical PG course. The petitioner-graduate had successfully obtained admission to the course, but was denied from joining on the ground that she had not completed a two-year mandatory service period with the government post MBBS.
This was because the petitioner had taken 180 days leave after she had given birth during her tenure. Holding that she was not entitled to such maternity leave on account of not being an approved probationer, the government had refused to relieve her of service for her admission. This was challenged through a writ petition before the High Court.
There cannot be discrimination in doling out Maternity Benefits
The Court ruled in favour of the petitioner, holding that the actions of the government authorities amounted to nothing but an incidence of woman harassment. The graduate was held to be entitled to the prescribed maternity leave on the primary ground that there cannot be discrimination between approved or unapproved probationers when it came to maternity benefits. The Court observed,
“…nature does not discriminate whether the woman is an approved probationer or an unapproved probationer with regard to the child birth. Whether an approved probationer or an unapproved probationer, she has to carry the child and the said probationer is entitled to all the maternity benefits as that of a permanent Government servant.
Any discrimination or different treatment by the Government by virtue of any rule denying the benefits on the ground that the candidate is not an approved probationer itself is unreasonable and violates dignity of a woman and her fundamental rights and human rights. The very purpose of having maternity leave is to avoid hard labour or work at the time of pregnancy as it would be detrimental to the servant/employee and also the health of foetus.”
The Court further called for a liberal interpretation of such beneficial concessions granted in favour of employees, lest the very purpose of the legislation will be defeated.
Maternity Benefits qua Approved v Unapproved Probationers
After examining relevant rules and facts, the Court came to the conclusion that the petitioner was not a mere temporary employee,but an approved probationer who is on probation for getting permanent status. It was also indicated that a right for permanencyaccrues by default on employees placed on probation, which will be lost only on account of dissatisfactory service.
“Placing of an employee on probation itself guarantees the right for permanency, unless or otherwise it is proved that his/her service is unsatisfactory during the probationary period. Only on the ground of dis-satisfactory service, the probationer can lose his or her job and not on no other discriminatory rules can keep the class approved probationer apart.”
The Court went on to hold that even unapproved probationers would be entitled to maternity benefits.
“…Court holds that even the unapproved probationers are entitled to avail maternity leave and consequential benefits as that of the permanent employees. In availing the benefits or concession given by the Government, there cannot be any discrimination between the temporary or permanent employees or approved probationers or successful probationers.”
In the instant case, the respondents have therefore been directed to allow the petitioner admission into her opted PG course without insisting that she re-write the NEET examination.
“The right to get admission in PG diploma in Gynaecology remains with the petitioner and the right should also be available for the next academic year 2018-19. The right once accrued cannot be very lightly interfered with based on the wrong interpretation or wrong order passed by the respondents.”
Lingering Questions on the Implementation of Maternity Benefits
Before parting with the order, Justice Kirubakaran observed:
“It is disheartening to note that inspite of the womens’ right to conceive a child, they are denied the benefits which they are entitled to under law by the Patriarchal society. Having a law is of no use, unless the benefit is extended to deserving persons by the law.”
The judge has therefore impleaded concerned authorities from the Central government and posed a list of fifteen queries to be answered when the matter is taken up next on January 22, 2018.
Among other queries, the Court has taken note of the tendency for delay in implementation of Central government directives for maternity benefits in states.
In addition, the Court has also touched upon related issues including availability of creche facilities, maternity risk insurance schemes, penal provisions for non-compliance with Maternity Benefit laws, measures to encourage breastfeeding and even using maternity benefits as incentives for population control:
“Why not the Government make it mandatory to get undertaking from the women employees to give maternity benefits including maternity leave, not to have more than two children, as a measure of population control, taking into consideration the enormous increase in population in India, which is the second most populous country in the world?”
Notably, the Court has also alluded to the feasibility of making a new born child’s right to be breastfed a fundamental right.
“Why not this Court declare right of newborn to mother’s feeding upto six months exclusively and upto 2 years along with substitution’s as fundamental right guaranteed under Article 21 of the Constitution and as human right as per international treaties?”
In the context of several quoted studies oriented around the benefits of breastfeeding, the Court has also posed the following questions touching upon the viability of moving towards making breastfeeding mandatory.
“Why not the Government make it obligatory on the part of the women Government servants availing maternity benefits to give breast feed exclusively to the child atleast during the said maternity leave period as the medical experts opine that mother’s feeding is not only healthy for the child but also for the mother as research would reveal that it would bring down incidence of breast cancer, as the Central and State Governments are extending benefits of maternity leave?…”
The complete list of queries posed is as reproduced below.
Why not the Central Government enhance the maternity leave from 180 days to 270 days (9 months) as done by the Government of Tamil Nadu by virtue of G.O.Ms.No.105, dated 07.11.2016?
Why not Central Government direct the states which have not increased maternity leave as 180 days on parity with Central Government Women employees, to do so within one year?
Why not the Central Government invoke Article 249 viz., Power of parliament to legislate in respect of matter in the State list in the national interest to treat maternity benefits including maternity leave and the right of the child to have breast feeding as issues of national interest?
Why not this Court declare right of newborn to mother’s feeding upto six months exclusively and upto 2 years along with substitution’s as fundamental right guaranteed under Article 21 of the Constitution and as human right as per international treaties?
Whether “Creche facility” is provided in the interest of women Government employees and their young children to have easy access to child and to feed during office hours in the Central as well as State Governments offices, where more women Government employees are serving?
Why not the Governments come out with special insurance coverage for all women covering maternity risk by making one time deduction of a specific amount from the salary of the women employees in the first month of pregnancy and the Government itself pay insurance premium for non-working women?
Why not the Government make it mandatory to get undertaking from the women employees to give maternity benefits including maternity leave, not to have more than two children, as a measure of population control, taking into consideration the enormous increase in population in India, which is the second most populous country in the world?
Why not the State and Central Governments insert penal provisions to punish the officials who are not granting maternity leave to the Women Government servants in time, when they are pregnant?
Why not the Government make it obligatory on the part of the women Government servants availing maternity benefits to give breast feed exclusively to the child atleast during the said maternity leave period as the medical experts opine that mother’s feeding is not only healthy for the child but also for the mother as research would reveal that it would bring down incidence of breast cancer, as the Central and State Governments are extending benefits of maternity leave?
Why not both the Central and State Governments sensitize the masses especially employed women about the importance of the mother’s feeding in the interest of the children, who are going to be the future generation, through media roping in celebrities like actors, cricketers etc., as well as have seminars and discussions in the Government offices, also through medical counselors?
Why not Central Government bring an act making obligatory on the part of Women to breast feed as has been done by UAE Government by having mandatory breast feeding clause in the new UAE Child Rights law?
Whether the provisions of “Infant milk substitutes, Feeding Bottles and Infant Foods (Regulation of Production Supply and Distribution) Act, 1992 are properly implemented including banning infant foods through advertisements and breast feeding is promoted?
Whether Central Government and State Governments could bring a new law to provide breast feeding rooms/spaces in public places like bus stand, railway stations, malls and work places like Government offices, factories etc., in the interest of feeding mothers?
Why not the Governments spend more amount per child, as Global breast feeding score board, 2017 released by Global breast feeding collective states that India only spends a negligible amount less than Rs.10/- per child?
Why not the Governments further improve maternal health services to further reduce Maternal Mortality Rate, even though recent world bank data puts Maternal Mortality Rate for 174 per 1,00,000 live births in 2015 which is a decline from 215 per 1 lakh in 2010?