Rida Rahman and Aashkaa Jain*
Source : Staff Corner
In the recent case of Delhi State Legal Services Authority vs. Annwesha Deb (‘Annwesha’), the Delhi High Court (‘HC’) overturned a verdict that extended benefits under the Maternity Benefit Act, 1961 (‘MB Act’) to female lawyers empanelled with the Authority. The Court declared that such persons, being ‘professionals’ and not ‘employees’, could not be extended maternity benefits. The paper analyses the requirements for receiving benefits under the legislation as a means of critiquing the judgement’s exclusion of ‘professionals’ from the same/from these benefits. The legislation has its roots in a beneficiary objective aimed at furthering and recognising female contribution to the workforce. The paper looks at the positively changing stance of the government and courts to grant further support for the expansion of coverage under the Maternity Benefit Act, 1961. Consequently, the paper argues for going beyond the strict technicalities associated with the traditional notions of the employer-employee relationship,
so as to achieve the purpose of social legislation.
I. Introduction
India has faced a systemic and dangerous gender gap in its labour workforce for a multitude of reasons, like conservative social norms, lack of opportunities, and supply of working women. The Government introduced the Maternity Benefits Act, 1961 (‘MB Act’) to ensure that the working status of women would not be hindered by their child-rearing duties, given their primary role in the household. Subsequent amendments and jurisprudence have generally affirmed the beneficial objective of the MB Act and the need to extend the same to all women. However, the recent Delhi State Legal Services Authority v. Annwesha Deb (‘Annwesha’) judgment, which restricts female lawyers from accessing such benefits, on the grounds that they are not ‘employees’, marks a departure in such an understanding. Such exclusion is particularly detrimental due to the sweeping nature of the verdict, which affects all females in the twenty-eight State Legal Service Authority and nine Union Territory Legal Authority in India. While this would naturally prevent working mothers from delivering the crucial care that is required for newborns and young children, additional concerns also arise as to how this would deter women from pursuing such vocations in the first place, defeating the very purpose of the MB Act.
In Annwesha, the case was lodged by a lawyer empanelled with the Delhi State Legal Services Authority (‘DSLSA’). The petitioner had to commute around fifty-four kilometres to reach her place of work. Due to her pregnancy, she was advised bed rest by the doctor, especially keeping in mind her arduous work travel. However, her application for maternity benefits at seven months pregnant was rejected by DSLSA. The DSLSA argued that the petitioner was not an employee of the authority, and hence fell outside the ambit of the MB Act. The single-judge bench graciously upheld the responsibility of the DSLSA for providing maternity benefits, but the High Court (‘HC’) overturned the decision in April 2024. The paper seeks to critique the decision by continuing the discussion on broadening the ambit of maternity benefits. To that end, Part II of this Paper will address the nexus between maternity benefits granted under the MB Act, and constitutional rights and principles as established by the judiciary in multiple instances, consequently establishing that its provisions cannot be interpreted restrictively. Part III will then proceed to substantially critique the Annwesha case, arguing that the MB Act should be expanded to include professional lawyers, given the objective and terms within said Act, as well as the unique nature of maternity benefits. Part IV will conclude the discussion.
II. Maternity Benefits Through The Constitutional Lens
The argument for expanding the scope of the MB Act is firstly aided by the recognition of the same being included within the provisions laid down by the Indian Constitution.
In the landmark case of Municipal Corporation of Delhi v. Female Workers (‘Muster Roll’), the Supreme Court (‘SC’) extended the beneficial provisions contained in the MB Act to all female workers of the Delhi Municipal Corporation, regardless of their status as muster-roll or casual employees.The Court here recognised the constitutional ideal of India being a welfare democracy where socio-economic justice is rendered to its subjects ,, and based its reasoning on the same. Moreover, it was observed that social justice cannot be overshadowed by industrial disputes, as the same is based on the “basic ideal of socio-economic equality”. Relying on the decision rendered in J. K. Cotton Spinning & Weavingmills v. Badri Mali, the Court reiterated that women must be respected and dignified at their workplace regardless of the “nature of their duties”. Further, whatever the nature of their activities, all women must be entitled to benefits “needed to facilitate the birth of a child”, considering the massive bodily implications confronted by working women who have given birth. The SC, in Muster Roll, additionally relied on Article 11 of the Convention on the Elimination of all Forms of Discrimination against Women, which obligates States Parties to take certain appropriate measures to prevent employment discrimination, including providing maternity leave or comparable social benefits, so as to ensure that women are not unfairly treated on the basis of their maternity condition. The Court stated that such provisions must be construed to form a part of the contract of service and entitle women to the benefits under the MB Act. Additionally, the SC reiterated the interpretation of Article 14 of the Constitution (which entitles to all persons equality before the law and equal protection of the law) as laid down in Hindustan Antibiotics Ltd v. Workmen, which mandates for labour to be treated equally, regardless of industry and region.
The SC additionally relied on the Directive Principles of State Policy (‘DPSP’) to arrive at their decision, holding that forcing women to work at a later stage of pregnancy would be detrimental to their health as well as to their child, necessitating maternity benefits. It resonated with Articles 39, 42 and 43, which ensure the protection of the health of workers and provide that people are not constrained due to “economic necessity to enter avocations unsuited to their age or strength”. They foster a safe working environment, including maternity relief and a suitable standard of living for all workers, regardless of their nature.
Additionally, in B. Shah v. Presiding Officer, the SC categorically held that when interpreting beneficial legislation such as the MB Act, inherently connected to Article 42, the beneficent rule of construction was to be utilised by Courts. Consequently, interpretations that helped a woman worker maintain her efficiency and output, alongside looking after her child and preserving her energy, were to be adopted. Moreover, in the landmark case of Bandhua Mukti Morcha v. Union of India, wherein the SC was deliberating over the working conditions of bonded women labourers, it was held that maternity relief is a fundamental right, included as an extension to life and liberty under Article 21 of the Constitution. Here, the SC held that the protection of the health of women workers was a “minimum requirement” that neither the States nor the Centre could curtail. While emphasising the relevance of the DPSPs, the Court observed that despite their non-enforceable nature, where legislation already provides for such minimum requirements in line with the same to workers, their non-enforcement would amount to a violation of Article 21 itself.
The reasoning in cases such as Muster Roll has been extended on multiple occasions, at both the SC and HC levels, which further indicates that a liberal interpretation of the benefits under the MB Act is preferred.
The most recent case wherein courts have elaborated on the relationship between maternity benefits and our constitutional principles is Minakshi Chaudhary v. Rajasthan SRTC (‘Minakshi’), which was decided by the Rajasthan HC in September, 2024 . In this case, the petitioner, working as a conductor for the Rajasthan State Road Transport Corporation (‘RSRTC’), had applied for maternity leave. However, the same was granted for 90 days as per the RSRTC Employees Service Regulations, 1965, rather than the 180 days prescribed by the MB Act. Here, the Court referred to the recommendations of the Law Commission of India, observing that granting of maternity benefits should be made obligatory for the State and not left to the will of employers. The Court additionally observed that such benefits should accrue to “all women including women working in the unorganized sector and private sectors as well”, stressing that a mere technical designation should not impede the granting of the same. The Court’s use of the term “working woman” rather than “employee” should also be noted, indicating that such benefits could possibly be extended to professionals as well. Moreover, the Court held that imposing such restrictions amounted to discrimination since the basis of the same was employment in the RSRTC in particular, with other departments remaining unaffected. A similar case can be made out for female lawyers in the DSLSA, who are being denied maternity benefits merely because they work for the authority in that particular designation.
The 2023 case of Swornalata Dash v. State of Odisha (‘Swornalata’) is also particularly relevant. Here, the Orissa HC held that maternity leave in particular was not comparable to other benefits provided to workers, being an “inherent right of every woman employee”, and therefore, no technical reason for denying the same could be accepted. In the same year, the Rajasthan HC affirmed that maternity leave would be available even to surrogate mothers , and expanded Article 21 to include the right to motherhood, and notably the right of the child to get “love, bond of affection and full care and attention”. Such decisions highlight the wide-ranging application and adaptability of the Act, so as to respond to contemporary realities. In the case of female lawyers, with the devolution of traditional notions of ‘employment’, they too could be entitled to certain essential social security benefits. These ideas will be elaborated further in Part III.
Recently, Courts have also explicitly obliged entities such as universities to introduce maternity benefits, when there is a lack of regulations or denial of the same. In Saumya Tiwari v. State of U.P., a B.Tech student, due to being an expectant mother, could not complete certain examinations, leading to non-completion of the course. Subsequently, her university declined to provide her with a chance to take the examinations that accommodated her maternity leave and postnatal recovery period, due to a regulatory vacuum with respect to maternity leave. The Allahabad HC observed that the enforcement of fundamental rights could not be curtailed on account of “legislative lag or executive inertia or a regulatory void” and directed the University to form guidelines on the same in light of Article 21. Particularly, the Court held that an employer’s inconvenience does not justify a denial of the claim for the protection of fundamental rights.
The above jurisprudential analysis clearly indicates that maternity benefits under the MB Act are unique in that they cannot be looked at restrictively and, moreover, are necessary for the enjoyment of fundamental rights.
III. Ambit Conundrum: (Dis)Privilege of Professionals
In this part, the previous liberal jurisprudence on maternity benefits is applied in the peculiar and disheartening circumstance of Annwesha. This juxtaposition concludes with the critique of the said judgement as setting back the aspirations of female professionals in India. This is mechanised by rejecting the arguments of DSLSA by resorting to a two-pronged approach – first, the literal meaning of terms like ‘wages’ and ‘women’ in the MB Act and second, accomplishing the evolutionary principles laid down.
The DSLSA argued that benefits under the MB Act were reserved only for employees. Hence, it was argued that the petitioner was not a regular employee of the establishment and only had a client-lawyer relationship with them due to the noble nature of the profession. This was contended as the petitioner was paid an honorarium and not a wage as per the MB Act. Therefore, the DSLSA admitted to giving maternity benefits to its regular employees but not to lawyers empanelled for a given duration under a contract.
It becomes crucial to look at the provisions of the MB Act to determine eligibility for maternity benefits and the relevance of ‘employee’ or ‘honorarium’ in the set-up. The MB Act defines an employer as “the person who has the ultimate control over the affairs of the establishment”.[1] Interestingly, the MB Act does not refer to the beneficiaries of maternity benefits as ‘employees’ in an establishment. The legislature has consciously referred to the beneficiaries as ‘women’.[2] An ‘employer’ is identified because they are liable to grant the maternity benefit. This distinction becomes important as it clearly lays down that the scope of the MB Act, as a social legislation, extends beyond an employer-employee relationship. The irrelevance of employee status as a requirement is further emphasised as maternity benefits are extended to women beyond their contractual period, even if the same ends regularly and not by means of a dismissal or lay-off.
The pregnant woman is eligible for the daily wage during the time of her absence from the workplace before or after her pregnancy as the maternity benefit.[3] The phrase ‘wages’ has been defined to mean all remuneration,[4] including contractual wages. The phrase is interpreted to be a composite term covering all remuneration by means of cash allowances, incentive bonuses and money value of foodgrains and other articles. It is in this context that a deeper analysis to accurately identify the beneficial nature of the welfare legislation, i.e., the MB Act,is required. As established earlier, all employees in an organisation are entitled to maternity benefits without discrimination. Accordingly, the nature of work, private or unorganised, is irrelevant to the grant of maternity benefits. Moreover, as acknowledged in cases such as Swornolata and Minakshi, maternity benefits should not be withheld on technical grounds.
In Muster Roll, the Delhi Municipal Corporation made a distinction between regular employees and employees on muster roll or casual employees for granting maternity benefits. As elucidated previously, the courts have used the doctrine of social justice and DPSPs to support granting maternity benefits. The casual employees were construction workers who were granted maternity benefits if they worked for more than three years at the establishment. Commendably, the court did not adopt a pedantic approach but bound itself to reality by making no distinction between regular, casual, contractual employees. The Ministry of Labour & Employment clarified the position on the absolute entitlement of maternity benefits to contract workers in a 2017 notification.
In the present case, the HC agreed with the DSLSA that the petitioner was not a contractual employee but was engaged professionally — however, the conditions of appointment point towards contractual employment. The petitioner was appointed for a period of three years, much like the workers in Muster Rolls. She was paid an honorarium of twenty-five thousand rupees per month in addition to the fee payable for each entrusted case. The DSLSA had the sole power to continue or dismiss the petitioner’s service. The work time of the petitioner in courts ranged from 10:00 AM to 5:00 PM, while after court, it was mandatory to visit observation homes. The petitioner was obliged to be present even in the absence of any cases allotted. Furthermore, the petitioner’s attendance and work were maintained in a daily register. The petitioner was under the “direct control and supervision” of the DSLSA as she could only appear in cases assigned by DSLSA during her empanelment till 5:00 PM in the day, after which the courts in the country would close. The petitioner was also orally instructed to not carry an individual practice. This shows that DSLSA and the petitioner shared an employer-employee relationship as per the definition of the MB Act and the primary test of control. In lieu of Rule 49 of the Bar Council of India Rules, even if the DSLSA’s contention of a client-lawyer relationship is assumed, it is now held that a client exercises direct control over the advocate, resulting in a contract of service. It is argued that such an integrative test must be adopted to qualify a beneficiary under the MB Act, specifically keeping in mind the objective of the Act. It is important to note that even if the argument on an employer-employee relationship fails, maternity benefits would be extended due to ‘direct control’ of the client in a client-lawyer relationship. The establishment of a contract of service indirectly qualifies one as an ‘employee’.
Hence, it is maintained that the demarcation between an employer-employee and a client-lawyer professional engagement is a hyper-technicality which obstructs the purpose of social legislation. It becomes important to look at the substance of the contract rather than the form to precisely identify the service relationship, whose nature is anyway submitted to be irrelevant to receiving the fundamental right to maternity benefits. The HC reasoned that the inclusion of panel lawyers would make “an entity engaging professionals like an Advocate, bound to give the maternity benefits to each of those who are engaged professionally”. The HC unreasonably places the financial well-being of employers above the wellness of pregnant women and constitutionally granted rights. The nature of the DSLSA as an entity established by the respective state government implores the Courts to not allow invasion of rights by DSLSA. Any hesitation shown by courts or employers in granting maternity benefits, now recognised as a fundamental right, is a farce to protect the employer’s convenience which is unjustified.
The argument for expanding the scope of maternity benefits is complemented by a similar contemporary trend in courts and parliament. The Maternity Benefit for Women in the Unorganised Sector Bill, 2023 was proposed in the Parliament in February to codify maternity benefits in the unorganised sector. The gig workers are set to access these benefits under the planned social security code thereby cementing the decision in Muster Roll. These legal incidents, along with the object of the MB Act, highlight the objective of the legislature and the judiciary to permit all working women to take benefit of the MB Act as a matter of right. The restrictive interpretation of the MB Act in Annwesha would ultimately force the petitioner to leave employment, which would create financial trouble in rearing the child. Such a consequence is against the objective of the MB Act, which seeks to promote and balance the career of women and the needs of a pregnant woman and child.
IV. Conclusion
The MB Act aimed to alleviate the concerns of working women with regard to occupational disadvantages stemming from pregnancies. Accordingly, the legislation is supposed to protect the position of women in the workplace when they enter into a pregnancy. The Annwesha case withdraws the protection of employment along with benefits under the MB Act due to the nature of the petitioner’s employment. This ultimately restricts the application of the MB Act to certain categories of women and undermines both the intent of the legislation and the jurisprudence on the matter. An expansion of the scope of maternity benefits that includes professional lawyers is in line with the constitutional guarantee of life and liberty, fostering gender equality in the workforce and supporting women in balancing their careers and motherhood. It becomes especially important to rectify the HC decision in the Annwesha due to the large number of females ‘empanelled’ with state legal services whose fundamental right to maternity benefits would be impinged due to the legal fiction of a ‘noble profession’.
[1] Maternity Benefit Act 1961, s 3(d)(iii)
[2] Maternity Benefit Act 1961, s 3(o)
[3] Maternity Benefit Act 1961, s 5(1)
[4] Maternity Benefit Act 1961, s 3(n)
*Rida Rahman and Aashkaa Jain are 3rd-year law students at the West Bengal National University of Juridical Sciences, Kolkata.
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