India’s Maternity Benefit (Amendment) Act: Anticipating Clarification of the Crèche Clause

Sarah Faris 

Roughly a decade after the adoption of India’s Constitution in 1950, the nation implemented several pieces of legislature specifically geared towards promoting women’s participation in the workplace.[1] One such piece of legislation, entitled the Maternity Benefits Act of 1961, was revisited and amended just last year in March 2017.[2]   This amendment reflects an expansion of the rights of pregnant, working mothers and families with young children in general. 

The original 1961 version of the Maternity Benefits Act implemented paid leave for mothers.[3] Specifically, it provided mothers with twelve, fully paid weeks of leave, which could either all be used post-delivery or split up between pre and post delivery usage.[4]  The Act protected women from being fired while on maternity leave.[5] Even upon the expiration of leave, the Act included provisions favoring nursing mothers.  Until a child had reached the age of fifteen months, it was required that the mother be permitted two nursing breaks during the workday, in addition to the normally allotted breaks.[6]

The Maternity Benefit (Amendment) Act of 2017 builds upon these provisions.  The Act further extends the amount of paid leave time available to mothers, providing twenty-six weeks of paid maternity leave for new mothers.[7]  A mother of two or more, however, will still adhere to the twelve-week leave system that had previously been in place.  The same split-time opportunity from the 1961 version, allotting six weeks before and after birth, is still available to second time mothers.[8] First time mothers may use up to eight weeks of leave before birth, and eighteen weeks once the baby has arrived.[9] In addition to these accommodations for prepartum and postpartum mothers, provisions are set in place for mothers who have legally adopted babies as well.[10] If the child is younger than three months old when adopted, the new mother is allowed twelve weeks leave, starting at the time that the child is placed in their care.[11] 

Interestingly, rather than merely expanding the time frame of maternity leave, notable amendments also address childcare after leave has terminated.  For example, there is a new provision specifically allowing the mother and employer to negotiate additional terms of leave in situations where work can be completed from home.[12]  Perhaps most notable, however, is the new crèche facility requirement. 

Although the laws became effective as of July 1, 2017, logistical detailed requirements for the crèche facilities have yet to be released, but are expected November 2018.[13]  Until that time, however, existing crèche facility laws set in place by the Factories Act of 1948 are to be followed.[14] These include basic requirements, such as maintaining adequate ventilation and sanitation at the facility and ensuring that children receive care from trained childcare professionals.[15] Additionally, while the Factories Act recognizes crèche facilities as accommodating children up to the age of six, it is important to clarify whether or not this approach will be maintained.[16] 

There are, however, some major differences between the Factories Act provisions, and those provided for in the Maternity Benefit (Amendment) Act, which indicate some notable changes.  In an opinion piece by Gerald Manoharan and Sonakshi Das, these attorneys speak to the importance of providing uniform, streamlined guidelines for these facilities.[17]  They point out that the Factories Act of 1948 provided significant discretion to the States to determine the specifics for implementing facilities, within their localities and industries.[18] Specifically, the Act includes an entire subsection providing that the State Government may make specific rules concerning issues such as the location of facilities, standards for the rooms, provisions of refreshments, and feeding times.[19]   However, such state discretion is noticeably missing from the Amendment, and may prove to be difficult to implement until a uniform approach is spelled out.[20]

Accordingly, there are additional components to the amendment that should hopefully receive clarification in the upcoming months.  For one, the language of the amendment states that the location of the crèche facility must be within “such distance as prescribed,” for “every establishment having fifty or more employees.”[21]  This location requirement appears to be ambiguous as it is currently adopted.  

According to a June publication of The Tribune India, a senior official was quoted as having stated, “As of now, companies can take a leeway as we have not defined within what distance a crèche should be opened by an employer.  We are yet to bring that into the rules and then have to notify that in a couple months[.]”[22]  While this leeway perhaps allows employers some freedom in determining the best manner of implementing crèche facilities based on their specific situations, it seems that it will be important for them to be away of what types of restrictions may or may not be adopted before any serious planning is underway.  For example, if a company must purchase additional space nearby their facility to accommodate the needs of their employees, it would be vital to know the distance that is required prior to making such a purchase. 

Another key aspect of the language, as mentioned above, identifies that crèche facilities are to be maintained near any establishment that has fifty or more employees.  The use of the term “employees,” without the caveat of “female” or “mother,” suggest that the crèche facility would be a requirement whether mother or father are employed.[23]  This increases the scope of the law, recognizing the need for childcare as one that is not gender-defined, and the role of both parents as caretakers.  This is certainly a contrast from the language used in the Factories Act of 1948, where the crèche is to be provided only in factories where thirty women are regularly employed.[24]

This new legislation is an incredible step, then, in addressing the needs of childcare for working families.  However, it appears that there is some concern as to the manner in which the crèche facilities will be implemented.  Whereas previously there was local discretion provided as to the specific logistics of the facilities, this new amendment appears to be an attempt at a more universal method.  With that in mind, then, the language of the upcoming specifications will be important for determining how well this can truly be implemented. 

[1] Ujvala Rajadhyaksha & Swati Smita, Tracing a Timeline for Work and Family Research in India, Economic and Political Weekly, 1674-80, 1675, (Apr. 24, 2004). 

[2] Raavi Birbal, Creche Clause in Maternity Act Depends on Execution, New Indian Express (May 27, 2017), http://www.newindianexpress.com/magazine/voices/2017/may/27/creche-clause-in-maternity-act-depends-on-execution-1609118--1.html.

[3] Supra Rajadhyaskha, note 1 at 1675. 

[4] Id.

[5] Id.

[6] Id. 

[7] Matt Turner & Anushree Singh, Here’s how Much Paid Leave New Mothers and Father get in 11 Different Countries, Business Insider (Sept. 7, 2017), http://www.businessinsider.com/maternity-leave-worldwide-2017-8/#australia-there-is-a-legal-requirement-to-provide-12-months-maternity-leave-1.

[8] Id. 

[9] Id.

[10] The Maternity Benefit (Amendment) Act, 2017, Gazette of India, pt. II, sec. 1 (Mar. 28, 2017) http://www.egazette.nic.in.

[11] Id. 

[12] Id. 

[13] S.S. Rana & Co. Associates, India: Creche Facility Under Maternity Benefit Amendment Act, 2017, mondaq (Jan. 29, 2018) http://www.mondaq.com/india/x/668308/Employee+Benefits+Compensation/Creche+Facility+Under+Maternity+Benefit+Amendment+Act+2017.

[14] Id.   

[15] Id. 

[16] Anushree Sharma, All you Need to Know about the Crèche Facility Provision, People Matters (May 30, 2017) https://www.peoplematters.in/article/hr-ready/all-you-need-to-know-about-the-creche-facility-provision-15571?utm_source=peoplematters&utm_medium=interstitial&utm_campaign=learnings-of-the-day.

[17] Gerald Manoharan & Sonakshi Das, Crèche is not Kid’s Play: Bridging Gaps- Crèche Facility Under the Maternity Benefit (Amendment) Act, 2017,  Live Law.In (June 22, 2017), http://www.livelaw.in/creche-not-kids-play-bridging-gaps-creche-facility-maternity-benefit-amendment-act-2017/.

[18] Id. 

[19] Factories Act, 1948, No. 63, Act of Parliament (1948, sec. 48, http://www.liiofindia.org/in/legis/cen/num_act/fa1948108/.

[20] Supra Manoharan & Das, note 14. 

[21] The Maternity Benefit (Amendment) Act, 2017, Gazette of India, pt. II, sec. 1 (Mar. 28, 2017) http://www.egazette.nic.in.

[22] Creche May Soon be a Must in Offices with 50 Employees, Tribune India (July 17, 2017) http://www.tribuneindia.com/news/nation/creche-may-soon-be-a-must-in-offices-with-50-employees/437979.html.

[23] Supra Sharma, note 13. 

[24] Factories Act, 1948, No. 63, Act of Parliament (1948, sec. 48, http://www.liiofindia.org/in/legis/cen/num_act/fa1948108/.