The Kerala High Court, earlier this week gave a remarkable and progressive judgment on the dignity of motherhood. The court asked a very important question: Can the State, or its instrumentality as an employer, discriminate against a woman employee based on compelling family care giving responsibility (caring for her child)? The court also stated that “no service regulations can stand in the way of a woman for claiming protection of her fundamental right of dignity as a mother”, and emphasised that the government should come up with legislation to protect employees from discrimination at the workplace due to their family responsibilities.
But from the policy point of view, the question remains: Do we need another legislation to protect the dignity of motherhood or can it be subsumed within an already establishment law?
In the present case, the Kerala High Court examined the petition of a working woman who had been confronted with a working environment that did not adhere to gender equality and was suited to men only. The petitioner KT Mini was working as an assistant at the Life Insurance Corporation and had 17 years of unremitting service. She began working with LIC in 1989 in Calicut.
Her second child, born in 2001, was diagnosed with mild autism characterised by speech impairment and abnormal social behavior. In 2007, the petitioner, on leave, took her child to Chennai for treatment. Later, when her banker husband was posted in Bahrain, Mini joined him in order to look after their child.
During this period, LIC ignored her request for extension of leave or transfer to Bahrain, and began disciplinary action against her and removed her service. After this incident, Mini was compelled to resort to legal action.
The court’s approach towards Mini’s petition is liberal — it recognises the issues that working women face in employment, and how laws fall short in helping translate constitutional and fundamental rights for working women. The court stated: “Though there is no protective legislation to protect a working woman against compelling family responsibility discrimination, the constitutional court cannot ignore involvement of fundamental rights as against the State. The question of legality of disciplinary proceedings should not be assessed in the narrow compass of rules or regulations of the corporation, but rather within the framework of fundamental rights qua principles relating to family responsibility developed through international human rights law embedded into our constitutional principles.”
The judgment recognises that in the current social climate, motherhood is a right that has to be protected by an employer in certain circumstances. More importantly, it subsumes motherhood and the right to dignity as a mother under Article 21 which protects life and personal liberty: “Personhood of a woman as mother is her acclaim of individuality essentially valued as liberty of her life. This was so designed by culture, tradition and civilisation. Mother’s role in taking care of the child has been considered an honour; she enjoyed such status because of her position in respect of the child. If for any reason she could not attend her workplace due to her duties towards her child (compelling circumstances), the employer has to protect her personhood as a ‘mother’. If not that, it will be an affront to her status and dignity.”
Another important observation from the court was that in today’s world, a woman cannot be compelled to choose between motherhood and employment, and a woman employee should not be expected to surrender self-respect and fear against her if she is unable to attend work because of a “compelling family responsibility”.
However, the court, in the judgment, repeatedly states that there is no legal framework for protecting the dignity of motherhood at the workplace, and the legislature should advance a legislation to protect employees against discrimination due to family responsibilities.
But is another legislation really necessary? Earlier this year, the Maternity Benefit (Amendment) Act, 2017 — an amendment to the Maternity Benefit Act, 1961 — was passed in Lok Sabha and Rajya Sabha and received the president’s assent as well. It came into force from 1 April, 2017. The Maternity Benefit Act, 1961, protects the employment of women during the time of maternity and entitles her to something known as “maternity benefit”, which is a full paid absence from work. The amendment to Act increased paid maternity leave, identified enabling provisions to work from home, necessitated mandatory crèche facilities in establishments that employ 50 or more employees, and added adoptive and commissioning mothers in the definition of mother.
My argument is that instead of looking at drafting and adopting a new legislation for protecting employees against discrimination and safeguarding the dignity of motherhood, there should be newer provisions added to the Maternity Benefit (Amendment) Act, 2017, so that employers can introduce such mechanisms.
The Maternity Benefit (Amendment) Act does an excellent job in terms of expanding definitions and stretching out the procedural apparatus for initiating change in workplaces towards motherhood. However, it does not look at substantive changes that can be brought about through its use. The amendment also does not mention implicit and explicit ways that the working mother will strike a balance between work and motherhood. In many work spaces, the notion of “work/life balance” means very little because employers perceive that their responsibility is complete as soon as it has provided maternity leave and/or benefit to the new mother. The amendment act has a provision that makes it mandatory for employers to educate women about maternity benefits available to them; this provision should be used to instill sustainable and feasible ways in which a working mother feels secure in her workplace.
The Kerala High Court judgment is not just a notional one, and inspires further policy action; it relies on the framework of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to delineate the intricacies of a policy that will respect motherhood and not discriminate against mothers — “Convention on rights of child, cast an obligation on the State to respect the responsibility, rights and duties of parents.ICESCR Convention also obligates the State to take special measures for protection of children without any discrimination. UDHR also mandates that motherhood and child are entitled for special care.”
In my opinion, the judgment shall be instrumental in changing the landscape of maternity benefits, if implemented in policy terms.>