Reproductive Rights and Exclusionary Wrongs: Maternity Benefits

REVIEW OF WOMEN’S STUDIES

october 22, 2011 vol xlvi no 43 EPW Economic & Political Weekly94

Reproductive Rights and Exclusionary Wrongs: Maternity Benefits

Lakshmi Lingam, Vaidehi Yelamanchili

We acknowledge the support of the Ministry of Labour and Employment and the ILO, New Delhi for commissioning the maternity benefits study from which this paper draws its major observations. We wish to thank S Parasuraman for his constant support and his engagement in discussions on social policy. We wish to thank the reviewer of this paper for the valuable comments and the warm support of Kalpana Kannabiran and Padmini Swaminathan.

Lakshmi Lingam ([email protected]) is at the Tata Institute of Social Sciences, Hyderabad. Vaidehi Yelamanchili ([email protected]) is at the Tata Institute of Social Sciences, Mumbai.

Women contribute to the economy with their unpaid

labour as well as social reproduction work but maternity

protection in India is sector-specific and employer-

employee centric. It thus leaves out the large majority of

women in the unorganised sector. A new scheme such

as the Indira Gandhi Matritva Sahyog Yojana which is

being piloted in 52 districts implicitly recognises the

need to compensate for wage loss due to maternity and

provide support for the mother and child’s nutrition.

However, a series of exclusionary clauses mar the

objectives of the scheme. This paper attempts to

demonstrate the misguided “targeting” of this scheme.

The Planning Commission is preparing to scale it up at

the national level in the Twelfth Plan, perhaps with the

same set of incentives and disincentives as are currently

spelt out in the pilot phase document. The data clearly

shows that if these exclusionary clauses remain they will

“victimise the victim”.

Introduction

A mong the various rights to secure the working and living conditions of workers, maternity protection for women workers had attained significance during the

early 20th century. Women’s organisations that work with women workers in the unorganised sector and children continuously flag women’s right to social provisioning of maternity leave and childcare support. The legal framework developed in post-independent India, to provide for maternity protection is limited in its scope and coverage, resulting in the exclusion of large majority of women who are in the unorga-nised sector. The period of liberalisation has transformed the organisation of production and labour leading to a further erosion of the limited rights that women workers enjoy. A new scheme such as the Indira Gandhi Matritva Sahyog Yojana (IGMSY) which is being piloted in 52 districts implicitly recognises the need to compensate for wage loss due to maternity and support for the mother and child’s nutrition. However, a series of exclusionary clauses dampen the objectives of the scheme.

This paper attempts to trace the trajectory of maternity ben-efits and protection related issues in India to explore the classic interlocking of women’s work and maternal roles and their treatment through the years. It draws from a recently concluded national assessment of maternity protection in India, conducted for the Ministry of Labour and Employment, Government of India, and the International Labour Organisation (ilo), New Delhi (Lingam and Krishnaraj 2011). The paper is structured in six sections – Section 1 discusses the conceptual issues around women worker’s reproductive rights; Section 2 covers women’s movements and legal guarantees for maternity protection and women’s rights as workers. Section 3 poses the key issues that revolve around women’s work and the linkage to maternity benefits, the invisibility of women’s contribution to social reproduction and the particular ways by which women are getting inserted into the global economy. Section 4 lays out the patterns of women’s employment in India and what the data portends. Section 5 reviews the major approaches to maternity protection and their efficacy and Section 6 examines the IGMSY particularly around the clauses of exclusion and throws light on who is getting excluded thus violating women’s reproductive rights and the United Nations (UN) International Conference on Population and Development (ICPD) Platform of Action related commitments that the Indian government has made.


Economic & Political Weekly EPW october 22, 2011 vol xlvi no 43 95

1 ‘Equality’ and ‘Difference’

Attempts to participate in the employment sector and seek ma-ternity protection and childcare support at the workplace often lead to a disadvantaged position for women. This situation is re-ferred to as the “Wollstonecraft dilemma”, an idea developed by Pateman (1989). Women have sought, as was laid out by Mary Wollstonecraft, two routes to citizenship – one as full and equal citizen as workers and contributors. But this route fails to recog-nise that there are differences in capabilities (such as bearing a child) between men and women. The second route is to demand that the currently unpaid work of the woman in the home be rec-ognised as productive and, hence, contributive to the welfare state. In doing this work, women are fulfilling their duties within the role of citizen. This manoeuvre will get the public-private/production-reproduction duality into the open but relegates women, still, to the private sphere of the home where, in spite of any laws or economic remuneration, they will continue to be seen as the perpetual second sex.

Wollstonecraft’s dilemma and attempts by women to traverse the paths laid out by it have both highlighted and ignored the fun-damental, underlying problems of the liberal-democratic welfare state. Pateman suggests the need to redefine and restructure employment law and norms to both better recognise work outside of the confines of the office and the factory as valuable work and afford both men and women equal opportunity and incentive to take part in that work. Legislating paternity, maternity leave and care work would bring more equity into child-rearing, domestic work and care work, while allowing mothers and fathers both to have a job to come back to; allowing both to be bread winners. The key challenge is to have the State and society to recognise wom-en’s roles in production and reproduction and provide public pol-icy support to maternity (that includes women), paternity (that includes men) and care work (that includes both). The availability of cheap labour of poor women as domestic “workers” and “helps” to cushion the reproductive work (cooking, cleaning, rearing chil-dren and caring for the aged) of middle and upper classes of women had completely smoke screened discussions on “domestic work” and “care work” in the Indian feminist movement, while it is part of serious discussions in western feminist movements to reorient gender division of labour and welfare policy support.

The “equality” plank and the “difference” plank with regards to women’s rights, create a continuous possibility for public policy flip-flops on how women’s reproductive rights are positioned vis-à-vis their civil and political rights in India. Within the notion of liberal citizenship “either women are taken to be equal to men, in which case their specific capacities as women are unrecog-nised and their citizenship is substantively unequal; or else women are taken to be different, with the consequent risk that the rights that citizenship allows and the obligations it imposes will again be substantively unequal” (Nash 2001: 255). Position-ing of rights within these binaries reinforces the understanding of a gender-neutral citizenship, which is rational and masculine, and located in the realm of “public” in opposition to the feminine “private” sphere of care and subordination.

Parallels can be observed in the debate on reservations for women in politics. Reservation of seats for women as a separate

category in legislatures, public services and institutions of higher education has met with ambivalent reactions throughout pre- independent, early independence and contemporary times in India. Unlike the present times where women’s movements are taking a pro-reservation stance with regards to the 81st Amend-ment Bill (also known as the Women’s Reservation Bill) for 33% reservation of seats in Parliament, the first wave women’s move-ment1 had grappled with the question and considered that seek-ing reservations is contrary to the notion of “equality” and is against “nationalism”. Vina Mazumdar, a senior political scientist and the former chairperson of the Committee on the Status of Women in India pointed out that the early thinking during pre-independence of “abstract citizenship” and “national integrity” had actually protected the privileged and had accentuated gender inequalities at all levels. She argued that “institutionalised ine-qualities” require “institutionalised counter measures” (Mazumdar 1997: 19) clearly setting the tenor and tone of the current debates on the Women’s Reservation Bill, a bill which is being defeated in the House repeatedly on several grounds.

From a substantive equality framework it becomes amply clear that “equality” cannot be achieved without the comprehension of inequities, the source of the inequities and addressing the same through an “equity” perspective. To elaborate further, equity has to be understood as – horizontal equity and vertical equity. Hori-zontal equity demands that equal resources and attention need to be given to men and women to access those resources which they need to realise their potential as human beings. On the other hand, vertical equity means that different needs of men and women (that may or may not stem from biological differences) need to be recognised and addressed in terms of increased allo-cation of resources to meet the needs.

This paper attempts to demonstrate the misguided “targeting” of the latest national maternity protection scheme – the Indira Gandhi Matritva Sahyog Yojana (IGMSY pilot phase launched) – which leaves out women who require such protection the most and sets up cash benefit instalments of the scheme against the demonstration of “good” behaviour as a “good” mother by regis-tering pregnancy, going for institutional delivery and breast-feeding the baby for the first six months. The criteria of “target-ing” and the close monitoring of women for cash transfers echoes what Foucault calls the “socialisation of procreation” and the bio-politics of population (Foucault 1978).

2 Women’s Movements and Legal Guarantees

The ILO had laid down maternity related entitlements for women workers in 1919. The Indian women’s movement had actively en-gaged with the concerns of women as workers and their repro-ductive rights (with a family planning language) during pre-in-dependence period (Chaudhari 1993). An enlightened vision of women workers emerged after a century of struggle by liberal reformers and women’s action groups in India. Women’s India Association (WIA) was the first to demand maternity benefits for women workers in the Jamshedpur steel industry in 1920. The association raised questions of dismissal without compensation. Subsequently, the WIA, which was renamed All India Women’s Conference (AIWC), continued to focus on women workers’



condition and their rights. Attempts to bring about maternity benefits in line with the ILO recommendations, met with serious debates in the late 1920s. Representatives of mill owners, trade unionists and nationalists, seriously contested the debate on the Maternity Benefit Bill in the Bombay Assembly, which was passed in 1929. The bill was couched in the language of protection rather than of rights for working women (Chhachhi 1998). The debates resonate with current perspectives that often support maternal roles but not necessarily in tandem with women’s rights as work-ers. Courts too continue to give contradictory verdicts when women litigate against discrimination at the workplace (Swami-nathan 2010).

Post-independence the Indian Constitution provided a broad framework for rights of workers in general and that of women in particular. However, policymaking post-independence till the late 1970s viewed women as “vulnerable” and relegated women to social welfare programmes. The State recognised their maternal roles and located them with reference to programmes of Family Planning and Maternal and Child Health (MCH), and missed com-prehending the paid and unpaid work roles that women play which intermesh with their maternal roles.

The considerable presence of women in workers’ movements finally led to the central Maternity Benefit (MB) Act of 1961. Women’s organisations demanded that all factories should have a woman doctor to provide prenatal and postnatal care, crèche and nursery for children, and housing for women workers. These efforts did result in positive state response in terms of suitable legislation however the legislation is linked to regularity of work, formal nature of employment and the presence of an employer to operationalise the entitlement. Hence, the government’s support for maternity, paternity and care work has been limited only to public sector (permanent) employees, which is a small fraction of the workforce.

The Past and the Present

The current poor policy comprehension by default or design of women’s paid and unpaid work and the necessity to recognise the same for maintaining consistency in how they are viewed to over-come the worker-mother-citizen triad can be tracked to its roots in the past. The pre-independence discussions on issues of low age at marriage, low age at fertility, repeated pregnancies, its implications on women’s health and access to contraception were part of the women’s movement. However, these discussions referred to women as “poor women” but did not make attempts to link women’s multiple work roles, paid and unpaid, and its link-age to their maternal roles. Hence, there is an interesting disjunc-ture in the movement discourse and in the public policy discourse from the early 20th century onwards.

The articulations on women’s education by colonialists, social reformers and nationalists were varied in their emphasis in terms of what it attempted to do. Banning several anti-women practices and promoting women’s education was part of the civilising mis-sion for the British. Constructing a “new woman” to be a counter-part to the educated and enlightened male marked the onset of the division between “domestic”, “private” and “public”. The con-struction of the spiritual space and location of women’s primary

role within the same to reiterate a nationalist interpretation of women’s emancipation, despite few countervailing voices from women freedom fighters marked the beginning of the construc-tion of middle class women distinctly different from the toiling classes of women (Chatterjee 1989; Shukla 1991; Kasturi and Mazumdar 1994; Sen 2000).

During the initial years of India’s independence an ambitious Community Development Programme was launched in 1952 aiming at a process of socio-economic transformation of the village community by mobilising both governmental and com-munity resources (Sharma 1985). The programme was rolled out in a uniform working pattern throughout the country without taking into consideration regional and local variations. This had nothing to offer to the millions of women who contributed to agri culture and other home-based crafts as wage workers or unpaid family workers. However, village women were expected to learn about health, hygiene, childcare, tailoring and kitchen gardening. It is pertinent to note that “Domestic Science” later known, as Home Sciences was part of the construction of the modern educated woman firmly located within the domestic where female agency and domesticity espoused individualism and scientific rationality during the early 20th century (Hancock 2001). A housewife model, as a strong element of the modernisa-tion approach, was introduced with this government programme through the mahila mandals (women’s clubs) set up for the same. Home Science wings were started in the Extension Education Centres in 1955 to train women community workers to work with women. The main objectives of the women’s programme were to help village women become “a good wife, a wise mother, a com-petent housewife, and a responsible member of the village com-munity” (Das 1959 cited in Sharma 1985).

The various national five-year plans that commenced from 1952 and upto the Fifth Plan had treated women as part of the weaker or vulnerable sections of society. The reconstruction of the country post-independence paved the economic growth ori-entation with “man the breadwinner and woman the housewife model”. The focus on women’s education, which was mentioned in the First Five-Year Plan, was tempered with an understanding that it should be supportive of private study and their aptitude for crafts (Buch 1998). Swaminathan (1991) unravelled the implicit patriarchal biases, which are premised on the understanding that women’s nature is alien to science and that since their nature is different they need a “different science”. These science and tech-nology policy positions are articulated in various five-year plans and government documents. The conceptualisation of the loca-tion of women, dalits, tribes and several other marginalised groups remained within the confines of a welfare approach, in plan documents till the Fifth Five-Year Plan.

The marginalisation from the political and economic processes of the country and the ensuing discontent led to wide-ranging mobilisation among several sections of society in the early 1970s. The Towards Equality (1974) report submitted by the Committee on the Status of Women in India (CSWI), highlighted three critical areas – employment, health and education – where a great deal needed to be done if any dent on gender inequality was to be addressed. It argued strongly for promoting, encouraging, and



protecting women’s economic participation. The committee no-ticed the declining ratio of female workers to male workers and the preponderance of female workers in the unorganised sector. It made extensive recommendations for job security, maternity benefit, vocational and skill training and institutional reforms to monitor and implement legal provisions. Thus, the report ques-tioned the complacency of assuming the adequacy of removal of barriers to education and employment without closely examining the deep-seated gender-based social and economic inequalities that mediate women’s access to social resources.

The public policy focus on women was propelled by UN man-dates during the Women’s Development Decade (1975-84), the second wave women’s movement and scholarly works on the “invisible” women by women’s studies scholars. The focus on women independent of their role as mothers was recognised for the first time in the Sixth Five-Year Plan (1980-85) document with a separate chapter on “women and development” devoted to enumerating the multiple roles that women play and the need to recognise women as “partners” in development rather than as “beneficiaries” of welfare programmes. Several time use studies and feminist thinking on women’s unpaid work and domestic work in the Indian context2 led to the foregrounding of women’s reproductive labour, contributions to social reproduction as important concerns that have to be factored into the enumeration of women as workers in decennial census (Krishnaraj undated; Jain and Chand 1982; Jain and Banerjee 1985).

A renewed concern for women in the unorganised sector, led to the constitution of the National Commission on the Self- Employed Women (NCSEW) by the Government of India. It was tasked with making a comprehensive study of the working and living conditions of women in the unorganised sector. The report titled “Shram Shakti” (NCSEW 1988) made several significant reco mmendations on maternity benefits and childcare facilities. After a prolonged silence during the entire 1990s, one of the re-cent legislations that clearly stated women workers’ maternity rights is the Mahatma Gandhi National Rural Employment Guar-antee Act (MGNREGA). It was passed in 2005.

Mobilisation around the key elements of women’s health rights, rights as workers, children’s rights for breastfeeding often do not attempt to reconcile and work towards the conver-gence of these issues as women’s rights to “equality” cognisant of their differential needs.

Maternity, Legal and Policy Frameworks

Globally various protections to workers are spearheaded by the ILO. It had laid down in the Maternity Protection Convention, 1919, various maternity-related entitlements for women workers. Women workers were entitled to 12 weeks of leave with cash benefits; daily breaks for nursing, and protection against dis-missal during leave and 29 countries ratified this convention. The 1952 revision stated that six weeks’ leave should be given after confinement. Medical benefits should include prenatal and post-natal care by a midwife or a qualified medical practitioner or a hospital, if necessary. More recently, the ILO Convention 2000 extended the minimum paid maternity leave to 14 weeks with a compulsory leave of six weeks after the birth of the child

(ILO 2000). The convention provides for means tested allowance3 to be paid out of public funds for women who do not qualify. In addition to the special focus convention on maternity benefit, the ILO has several social security conventions. The Indian Constitu-tion stipulates in its Directive Principles that states should make provisions for securing just and humane conditions of work and for maternity protection.

3 Women’s Work: Key Issues

Social Reproduction, Care Work and Poor Policy Support

Women as bearers and rearers of children provide the foundation for generating future labourers for any economy. Reproduction involves not only procreation but also the nurture and care of a growing child. There is also additional social reproduction by means of care work for the family and household, transmitting culture and maintaining social bonds and community. Social reproduction is defined within feminist theory as more than pro-duction in the Marxist sense; it includes the organisation of sexu-ality, biological reproduction, familial life, and care work to tend for children, old and the infirm. Laslett and Brenner (1989) point out that

in the feminist argument, renewing life is a form of work, a kind of production, as fundamental to the perpetuation of society as the pro-duction of things...societal reproduction includes not only the organi-sation of production but the organisation of social reproduction, and the perpetuation of gender as well as class relations (p 383).

Hanna Papanek (1979) coined the term “family status produc-tion” to cover the range of activities that women perform to repro-duce the social and cultural fabric of family and kinship systems.

Social reproduction attains lot more significance in economies which have a large subsistence sector and public provisions are inadequate or absent in many aspects of maternal care and child-care. Despite the knowledge that women’s work falls within a continuum of public and private domains, with the coexistence of wage and non-wage work, attempts are often made to draw neat distinctions to privilege what is seen as “economic” work or “pro-ductive” work. This neglect underlines the discrimination and marginalisation that women face for their commitments to their household and care work, which often creates the labour market entry barriers as well as the basis for discrimination.

Globalisation, Informality and Vulnerability

Liberalisation of the economy and flexibilisation of policies on labour, have led to a decline in the availability of formal employ-ment due to closure of several public sector companies, loss of demand for products produced internally due to competition from external markets and steady shift of jobs from the organised sector to the unorganised sector, or formal to informal sector. The typical characteristic of women seeking flexible income earning opportunities, due to multiple and competing demands on their time and energy in the absence of any familial or commu-nity or state run support services, makes them susceptible to seek home-based work or outsourced work as part of subcontracting in the globalising economies. Manufacturing industries are char-acterised by a dependence on skeletal permanent workforce and



large supply of flexible workforce. Educated women form part of the growing service sector. Regular work is available more to the relatively well to do women while poor women are bunched at the causal labour end. In addition, migration of males from rural areas for non-farm work has increased the burden of work on rural poor women. Female migration has also increased with the attendant hardships on women without childcare facilities. (Krishnaraj 1999). Therefore, the informal economy has emerged not as a residual category, but a sector that is embedded in the globalised economy where women are found holding the “wrong end of the rope” (Lingam 2006).

Along with the old demands made by the women’s movement of unorganised sector workers and their rights, it is time to look at the rights of women workers in the several private enterprises, in sub-contracted workshops and in the high-end new industries that are part of the globalising economy. Attempts to bring in for-eign direct investment (FDI) and build export orientation are premised on flexibility, elasticity, cheap and docile labour. Hence maternity protection and social security measures are resented by employers and do not figure under this economic regime.

4 Women’s Employment: Size and Characteristics

Currently there are an estimated 620 million men and 578 mil-lion women in India (2011).4 In other words, females constitute 48% of the total population. Among females, 54% of women are in the reproductive ages 15-49 years. According to the 2004-05 National Sample Survey Office (NSSO) data, 29% of all women (154 million women) and 45% of women age 15-49 years (124 mil-lion women) are in the labour force.5 By residence, 83% of all women and those between 15 and 49 years in the labour force are from rural areas. In terms of workforce, 29% of all women (150 million women workers) and 44% of women age 15-49 years (120 million) are in the workforce. By residence, almost 84% of all women and women age 15-49 years in the workforce are from rural areas. Differentials in the labour force participation rate (LFPR) by residence (rural/urban) are non-existent for men while for women the gap is large. About 57% of men from rural and from urban areas are in the labour force compared to only 33% of rural women and 18% of urban women, respectively.

Women’s employment characteristics like – the industry in which she is employed and her occupational status (paid, unpaid, self-employed, regular, casual, etc), the sector of em-ployment (organised or unorganised) and the nature of employ-ment (formal or informal) – critically determine the quality of employment and entitlements like social security cover in general and maternity benefits in particular. Since maternity protection is applicable more to women in the reproductive age 15-49, most of the estimates discussed below are for women in this age group.

Large differentials by residence and sex exist in terms of indus-try of employment in both organised and unorganised sectors as per NSSO 61st round (2004-05). In rural areas, women’s participa-tion in the primary sector (agriculture and allied activities) has declined marginally since 1993-95 though it is still the single largest employment sector employing women (75%). Seven and 17% of rural women are employed in the manufacturing and

service sector, respectively. In urban areas, the service sector is the primary employer of women with 67% of workers in this sector. Within this sector, trade, construction, transport, storage and communication, education and public administration toge-ther account for 45%. Manufacturing employs 23% and agricul-ture 10% of urban women. In short, agriculture in rural areas and services in urban areas are the largest employers of women.

Self-employed women and men operating with low levels of capital, technology and skill have the least protection. As in case of industry-wise composi-tion, in terms of nature of employment too, rural and urban areas show dis-tinctive patterns. Among female workers age 15-49, in rural India, in 2004-05, the self- employed pre-dominated with a share of 55% of the workforce (UPS)6 followed by casual labour (40%). Regular and salaried workers are in the minority (5%) – typical of an agrarian economy (Table 1). Whereas in urban ar-eas, the self-employed accounted for only 39% and casual labour for 17%, regular workers are 44% of the workforce.

Given the economic context for women workers if an attempt is made to look at the issues of childbearing and also further unpack these women workers by various social and economic inequali-ties, the picture does tell a story. Women’s background in terms of caste/tribe, educational attainment, economic status, etc, of-ten determines the type of employment she takes up. Poverty, marginal social status (belonging to scheduled caste (SC) or scheduled tribe (ST)) and casual labour are found to be closely associated. Findings from the NSS 61st (2004-05) round reveal that women’s work participation decreases with increase in monthly per capita expenditure (MPCE). Self-employment declines across economic classes with the highest incidence being among the poorest.

Data also reveal that majority of women workers are from the vulnerable sections of society like poor women, women belong-ing to the SC or ST and illiterate women who work to make ends meet. Though it is imperative to have more schemes that will cover a wider section of women and also have more stringent mechanisms to ensure proper implementation, the reality is a far cry from this expectation.

5 Maternity Benefits as Social Protection

Maternity protection as a form of social protection has different implications for women of different classes. Public provisioning for maternity and childcare in the form of wage loss compensation during confinement and crèche facilities at the workplace, and pa-ternity leave for tending to young children are different forms of support that encourage women to seek employment, participate in active public life and achieve equality. A process also described as “defamilisation”, which refers to the extent to which the

Table 1: Percentage Distribution of Female Workers (15-49 Years) by Activity Status (2004-05)

Rural

Activity UPS UPSS 1 2

Self-employment 54.6 62.4

Regular and salaried 5.1 4.0

Casual labour 40.3 33.6

Total 100.0 100.0

Urban Self-employment 39.2 46.9

Regular and salaried 43.5 36.5

Casual labour 17.4 16.7

Total 100.0 100.0Source: Lingam and Krishnaraj (2011). Compiled from NSS Report No 515.



welfare State weakens women’s dependency on the family and facilitates women’s economic independence (Bambra 2004).

In the former socialist countries, a mother was given fully paid leave for one year to take care of the child. The laws in various countries have evolved over a period of time, as an expression of basic social philosophies and in response to social movements. In western Europe and the Scandinavian countries, maternity and childcare policies have to be seen in the context of dwindling-family size and official population policy promoting a higher birth rate, universality of nuclear families as well as increasing incidence of single-parent families, and influence of powerful labour and women’s movements in shaping social policy (Swami-nathan 1993). Countries that are supportive of dual-earner families provide for maternity protection and care leave as opposed to countries that position their social welfare policies as pro-family or pro-market (Orloff 2002).

In order for women to not risk their health and that of the child; and benefit from employment security during their mater-nity, the following elements are required (in line with ILO Convention 183):• maternity leave; • cash benefits to ensure that the mother can support herself and her child during leave; • medical care; • protection of the health of pregnant and breastfeeding women and their children from workplace risks; • protection from dismissal and discrimination; and • breastfeeding on return to work.

Work and Breastfeeding

Promotion of gender equality in the world of work requires crea-tion of an enabling environment for women workers, safe work-ing conditions, and creation of structures that address sexual harassment at the workplace; policies that recognise work-family balance and particularly implement provisions that support women’s maternal roles particularly of reproduction and as pri-mary caretakers of children. While safe working conditions and policies for work-family balance would be applicable to male workers as well, issues of sexual harassment and maternity pro-tection are particularly applicable to women workers.

In the Factory Act 1948, the provision of crèches is conditional on the number of female employees and providing for maternity leave and breastfeeding breaks are built into the entitlements of women employees. However, the legislative framework is limited to organised work and it sets preconditions for a record of contin-ued work (160 days for example) and limits the period of mater-nity leave to 14 weeks. Obviously this leads to a number of prac-tices by employers, which ensure that women’s entitlements cannot be operationalised.

Over and above all these limitations, the period of maternity leave does not cohere with the World Health Organisaton (WHO) guidelines of the six-month period of exclusive breast-feeding that infants should receive as part of the efforts to reduce infant mortality due to diarrhoeal diseases caused due to bottle-feeding. Women often make the difficult choice of quitting work or introducing formulae feed to their babies.

Lack of or poorly maintained crèche facilities at the workplace and lack of transportation facilities discourage women from continuing with breastfeeding their infants. This is detri-mental to the survival, health and growth of infants (Swaminathan 1988).

Three Key Approaches: The three key approaches for social pro-tection pertaining to maternity are – employer liability, employer-employee contributory and the conditional cash transfer (cct). It is important to assess in the case of maternity protection the approaches that are currently in place and whether they provide necessary protection against risk and vulnerability during the critical phase of women’s life.

Employer Liability Approach – Maternity Benefit (MB) Act of 1961: The MB Act follows the employer’s liability approach, which implies that the employer solely bears the full amount of liability for providing maternity protection to pregnant employees and the employees are not required to make any contribution for availing of the maternity benefits. Indeed, this is a major legisla-tive enactment providing for maternity benefits in the formal sector. The explicit objective of MB Act is to regulate the employ-ment of women in certain establishments for certain periods before and after childbirth and to provide for maternity benefits and certain other benefits such as paid maternity leave, cash benefits, exemption from arduous work, protection from dis-missal and nursing breaks.

The Act extends to the whole of India and applies to those establishments, which are covered under the enabling provision of the Act in different states. There is no wage limit for coverage under the Maternity Benefit Act, 1961, which covers all the women in the applicable establishments. It is not applicable to the employees working in factories and other establishments, which are covered by the ESI Act, 1948. It is quite noteworthy that the MB Act does not mandate that a women employee be married to avail of these benefits. Pregnant women employees working in the central government are entitled to a maternity leave of 180 days (six months).

The MB Act is also applicable to casual workers and daily wage workers. It is noteworthy that without making any contributions whatsoever pregnant women are entitled to derive maternity benefits, provided they have worked for not less than 80 days in the establishment during the 12 months preceding the date of her expected delivery. The MB Act also covers miscarriages.

Employer-Employee Contributory Approach – Employees State Insurance (ESI) 1948: In India, the ESI 1948 is a piece of social welfare legislation enacted primarily with the object of pro-viding certain benefits to employees in the event of sickness, ma-ternity and injury at the site and during employment. The Act tries to attain the goal of socio-economic justice enshrined in the Direc-tive Principles of State Policy under Part IV of the Constitution, in particular Articles 41, 42 and 43. The ESI covers the organised private sector of different sizes and production capacities as well as shops and establishments. In the recent past several states



have declared hospitals and educational institutes within the ambit of the ESI.

The Act has wider coverage than the Factories Act, which con-cerns only health, safety, welfare, leave, etc. Extensive regula-tions have been framed under the Act. The employees are to be registered and their contribution cards and identity cards are to be prepared. An employee has to be identified in the records of the ESI Corporation. For adjudication of claims and disputes there are Employee Insurance Courts.

The above two major maternity protection schemes are designed to basically cater to workers in the organised sector. The Acts are biased towards permanent, full-time workers, workers with iden-tifiable employers and/or a designated place of work. Although “contract workers” are included, they need to be shown on the books of the employer to be eligible. The Employees State Insur-ance and Maternity Benefit Acts as currently applied offer mater-nity cover only formal workers of the organised sector. Data from NSSO (61st) shows that female workers aged 15-49 who are eligi-ble for maternity benefits form a mere 3% of workers (Lingam and Krishnaraj 2011). Hence, the reach of maternity benefit schemes on the basis of employment status is minuscule. The three seg-ments of workers completely out of cover of the ESI and MB Acts are agricultural workers in the monetised sector; temporary and informal non-agricultural workers in both rural and urban India and the invisible workers everywhere – workers without a desig-nated site of employment and/or an identifiable employer such as unpaid family help, self-employed poor, home-based workers, workers in private households, migran t labourers, etc.

Conditional Cash Transfer Approach

Conditional Cash Transfers (CCTs) is an approach which is a departure from more traditional approaches to social assistance and represents an innovative and increasingly popular channel for the delivery of social services. CCTs provide money to poor families contingent upon certain behaviour or action, usually investments in human capital such as sending children to school or bringing them to health centres on a regular basis.

One of the well-known programmes that attempts to promote institutional deliveries in India is the centre’s Janani Suraksha Yojana (JSY). The JSY is an incentive-based programme for the promotion of institutional deliveries. Cash assistance to the mother is mainly to meet the cost of delivery and given by bearer cheque only. Significantly, the JSY does not provide for wage loss due to pregnancy and confinement.

There are at least 19 maternity benefit schemes across all states, run by the department of health and family welfare and department of labour. A brief analysis conducted by the TISS study (cited earlier) of the schemes reveals that, except the Dr Muthulakshmi Reddy Maternity Assistance Scheme (DMMAS) of Tamil Nadu, other schemes have recorded a poor perform-ance in terms of targeting the number of pregnant women. A recent research study of the DMMAS jointly undertaken by the Public Health Resource Network (PHRN), M S Swaminathan Research Foundation (MSSRF) and the Tamil Nadu Forum for Creche and Childcare Services (2010) shows that the scheme offers greater universality than schemes limited by the below

poverty line (BPL) framework by including women on the basis of wide criteria.

It is amply evident that most of the schemes and programmes implemented through central or state funds have not foregrounded women’s work and maternity roles, and the need to provide a supportive environment. Most of the schemes are limited to women below the poverty line. Several studies (not referenced here) inform the problems in targeting various welfare programmes against documentary proof of BPL, which often are not available with the poor and needy, or the lack of portability of these entitlements impinges especially on women migrant workers who move across various agricultural zones in India.

6 IGMSY: Exclusionary Wrongs

After a careful study of the DMMAS of Tamil Nadu, the union Ministry of Women and Child Development has framed a new scheme titled Indira Gandhi Matritva Sahyog Yojana for preg-nant and lactating (P & L) women. This is a centrally-sponsored scheme in which CCTs are to be made directly to the beneficiar-ies. The basic objective of the scheme is to support women with nutrition and enhance early infant nutrition and survival through protection and promotion of early breastfeeding within one hour and exclusive breastfeeding for the first six months in order to improve child health and development. However, the scheme has several conditionalities at various stages of pregnancy and lactation. The beneficiaries have to be pregnant women of 19 years of age and above and the benefit is restricted to the first two live births only. The beneficiaries are directly paid Rs 4,000 in three instalments between the second trimester till the child attains the age of six months on fulfilling specific conditions re-lated to maternal and child health. In this way the scheme at-tempts to partly compensate for wage loss to P & L women both prior to and after delivery of the child. As the implementation of the scheme is through the platform of Integrated Child Develop-ment Scheme, the focal point of implementation is the Angan-wadi Centre (AWC) and the key personnel are Anganwadi Worker (AWW) and Anganwadi Helper (AWH). The IGMSY is being rolled out as a pilot project in 52 identified districts from all the states and union territories.7

The intention to have conditional benefits may be good and that is mainly to ensure that pregnant woman get all the neces-sary care and protection and do not drop out midway. However, these clauses can act as deterrents and women get left out because of their own negligence or several other factors beyond their control like unavailability of adequate services, social and cultural pressures, etc.

In this section, the exclusionary conditions under IGMSY are carefully examined to throw light on what they portend to the larger agenda of protecting women’s reproductive rights at an individual level and addressing maternal mortality and infant mortality at a macro level.

Fertility Pattern by Social Disadvantage

The total fertility rate (TFR)8 is higher for rural women and falls with women’s education, is higher for women belonging to the scheduled castes, scheduled tribes or Other Backward Classes

(Endnotes)

1 Ref.No9-5/2010-IGMSY.NotefromMrVivekJoshi,jointsecretary,MinistryofWomenandChildDevelopment,GovernmentofIndia,8November2010on“IndiraGandhiMatritvaSahyogYojana(IGMSY)–ConditionalMaternityBenefit(CMB)”.

2Totalnumberofchildrenawomanwouldhaveifsheissubjecttoprevailingfertilityratesatallagesfromasinglegivenyear,andsurvivesthroughoutherchildbearingyears(typically,15-49years).



poverty line (BPL) framework by including women on the basis of wide criteria.

It is amply evident that most of the schemes and programmes implemented through central or state funds have not foregrounded women’s work and maternity roles, and the need to provide a supportive environment. Most of the schemes are limited to women below the poverty line. Several studies (not referenced here) inform the problems in targeting various welfare programmes against documentary proof of BPL, which often are not available with the poor and needy, or the lack of portability of these entitlements impinges especially on women migrant workers who move across various agricultural zones in India.

6 IGMSY: Exclusionary Wrongs

After a careful study of the DMMAS of Tamil Nadu, the union Ministry of Women and Child Development has framed a new scheme titled Indira Gandhi Matritva Sahyog Yojana for preg-nant and lactating (P & L) women. This is a centrally-sponsored scheme in which CCTs are to be made directly to the beneficiar-ies. The basic objective of the scheme is to support women with nutrition and enhance early infant nutrition and survival through protection and promotion of early breastfeeding within one hour and exclusive breastfeeding for the first six months in order to improve child health and development. However, the scheme has several conditionalities at various stages of pregnancy and lactation. The beneficiaries have to be pregnant women of 19 years of age and above and the benefit is restricted to the first two live births only. The beneficiaries are directly paid Rs 4,000 in three instalments between the second trimester till the child attains the age of six months on fulfilling specific conditions re-lated to maternal and child health. In this way the scheme at-tempts to partly compensate for wage loss to P & L women both prior to and after delivery of the child. As the implementation of the scheme is through the platform of Integrated Child Develop-ment Scheme, the focal point of implementation is the Angan-wadi Centre (AWC) and the key personnel are Anganwadi Worker (AWW) and Anganwadi Helper (AWH). The IGMSY is being rolled out as a pilot project in 52 identified districts from all the states and union territories.7

The intention to have conditional benefits may be good and that is mainly to ensure that pregnant woman get all the neces-sary care and protection and do not drop out midway. However, these clauses can act as deterrents and women get left out because of their own negligence or several other factors beyond their control like unavailability of adequate services, social and cultural pressures, etc.

In this section, the exclusionary conditions under IGMSY are carefully examined to throw light on what they portend to the larger agenda of protecting women’s reproductive rights at an individual level and addressing maternal mortality and infant mortality at a macro level.

Fertility Pattern by Social Disadvantage

The total fertility rate (TFR)8 is higher for rural women and falls with women’s education, is higher for women belonging to the scheduled castes, scheduled tribes or Other Backward Classes

(Endnotes)

1 Ref.No9-5/2010-IGMSY.NotefromMrVivekJoshi,jointsecretary,MinistryofWomenandChildDevelopment,GovernmentofIndia,8November2010on“IndiraGandhiMatritvaSahyogYojana(IGMSY)–ConditionalMaternityBenefit(CMB)”.

2Totalnumberofchildrenawomanwouldhaveifsheissubjecttoprevailingfertilityratesatallagesfromasinglegivenyear,andsurvivesthroughoutherchildbearingyears(typically,15-49years).

and decreases steeply with the household wealth index (NFHS-3, 2005-06). Various studies have shown that high fertility implies early age at marriage, more high-risk births, higher infant mortality, shorter birth intervals, poor nutritional status of both mother and child, poor reproductive health, etc, all contributing negatively to the overall health of the woman. The performance in terms of reduction of fertility across various background vari-ables demonstrates the significance of social disadvantage that particular groups of women have. A close examination of Figure 1 clearly shows the pattern of fertility linked to wealth ranking, caste status, education and place of residence.

The wide differences in fertility patterns and utilisation of maternal healthcare services are a consequence of social inequity and inconsistent attempts in providing universal healthcare. In the long run, in order to ensure comprehensive maternal health-care, it must be the government’s endeavour to eliminate these disparities by caste/tribe and economic status and reach out health services to these groups without fail.

Maternal and Infant Mortality by Social Disadvantage

Maternal and child mortality levels are considered to be vital indicators of the health status of the people. The Millennium Development Goals (MDGs) had set the target of reducing mater-nal deaths to 200 per 1,00,000 live births by 2007 and 109 per

1,00,000 live births by 2015. However, the maternal mortality rate (MMR)9 continues to be high at 254 maternal deaths per 1,00,000 deliveries (SRS 2004-06) and the infant mortality rate (IMR)10 is 57 deaths per 1,000 live births (NFHS-3, 2005-06).

India’s maternal mortality figures reveal the neglect of women during their most vulnerable period of pregnancy and childbirth. It has also been found that negative pregnancy and maternal out-comes are higher among women from the scheduled castes and tribes, poor and younger mothers reiterating the multiple ways in which the disadvantaged women are at risk. Maternal mortality rate is estimated to be quite high among the women belonging to scheduled castes and scheduled tribes compared to the women of other castes (Bhat 2002). The Maternal and Perinatal Death Inquiry and Response (MAPEDIR) initiated by UNICEF in 2005, also reiterates the fact that most maternal deaths occur in case of women belong-ing to scheduled castes and scheduled tribes, and the illiterates. The study found that poor, powerless and pregnant women remain amongst the most vulnerable members of the society (UNICEF 2008).

It is observed that the desire to have more children is linked to the experience of child mortality. Hence, the class and caste groups that are economically, socially and educationally disadvantaged are the ones having high fertility and also infant mortality rates com-pared to other groups (NFHS-3, 2005-06). Also, maternal age at birth shows a U-shaped relationship with IMR, where it is substantially higher for mothers aged less than 20 years (77), lowest for mothers age 20-29 years (50) and highest for mothers aged 40-49 years (72).

In states like Kerala, Goa and Tamil Nadu, which have attained fertility below replacement levels, the mortality levels have also reduced greatly and this is true across all sections. Hence the attempt to increase the age at first birth and reduce the total births are important goals to reduce mortality levels and improve women’s status; however, the causative factors need to be addressed rather than the symptoms.

Fertility Pattern by Multiple Vulnerabilities

Among all births that take place in the country each year, a large majority (66%) are contributed by women who may have one or more vulnerabilities, that is, belonging to a scheduled caste or scheduled tribe, or are poor or have no education (Table 2). This data is calculated taking the fertility pattern as observed by the NFHS-3 (2005-06) of all women who have delivered in the year preceding the survey.

The data clearly tells us that 48% women will be ineligible if exclusion criteria as per IGMSY is adopted. Further, if various

Figure 1: Total Fertility Rates (TFR) by Selected Background Characteristics, India, NFHS-3 (2005-06)

Highest

Fourth

Middle

Second

Lowest

Wealth index

Other

Other Backward Classes

Scheduled tribe

Scheduled caste

Caste/tribe

12 or more years complete

10-11 years complete

8-9 years complete

5-7 years complete

<5 years complete

No education

Education

Rural

Urban

Residence

0 0.5 1 1.5 2 2.5 3 3.5 4 4.5

1.8

2.2

2.6

3.2

3.9

2.4

2.8

3.1

2.9

1.8

2.1

2.2

2.5

2.5

3.6

3.0

2.1

Table 2: Percentage of Women Aged 15-49 Who Give Birth in a Year and Percentage of Selected Categories of Women Who Are Eligible and Ineligible for IGMSY (Maternity Protection Scheme), NFHS-3, 2005-06

Among Women Age 15-49 Who Give Birth in a Year

Eligible by IGMSY Criteria Ineligible by IGMSY Criteria

Category of Women Percentage of all Women Percentage of Women Percentage of Women Percentage of Women Total Aged 15-49 Given Birth to Aged 19-49 Years Aged 15-18 Years Aged 15-49 Years Children in the Last Year Having < 2 Births Having < 2 Births Having More than 2 Births

All women 100 52 4 44 100

Women belonging to SC and ST or poor or having no education* 66 41 4 55 100

Women belonging to SC and ST 31 44 6 50 100

Women who are poor 40 37 5 58 100

Women with no education 46 34 4 62 100Computed from National Family Health Survey (NFHS-3), 2005-06. * Figures in categories overlap with more than one variable.



categories of vulnerability are introduced to understand which women will be excluded, it is clear that 59% women having any one of the vulnerabilities will get left out; by scheduled caste/scheduled tribe status this figure is 56%; by economic status (poor) this goes up to 63%; and more poignantly, it is 66% if we take women with no education into consideration.

Exclusionary Criteria

The Planning Commission is preparing to scale up the IGMSY at the national level in the Twelfth Plan, perhaps with the same set of incentives and disincentives as are currently spelt out in the pilot phase document. Multiple vulnerabilities among the so-cially disadvantaged groups need to be addressed together and not in isolation. The assumption that inclusion in schemes sends a signal that early age at marriage and having more children is being rewarded misses the point that early age at marriage, fertility and infant mortality are outcomes of deep-seated patri-archal values and social disadvantages which are not amenable to cash incentives. Exclusion from schemes will “victimise the victims” and reinforce the double-speak label that most state in-terventions have. The states have to work towards reducing structural inequalities, create enabling environment and work towards substantive equality rather than penalising women.

All forms of exclusion criteria violate the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) commitment and the UN International Conference on

Population and Development’s (ICPD) Platform of Action to which India is committed.

Conclusions

This paper broadly covers the issue of maternity protection and the perspectives that governed the same from the period of pre-independence to contemporary times. The presentation of recent data reiterates that India continues to have a large major-ity of women in the unorganised sector, and that women con-tinue to buffer the economy with their unpaid labour as well as social reproduction work. This highlights the limitations of the current framework of maternity protection that is sector-specific and employer-employee centric. An overview of the maternity protection approaches is given to provide the background for the upcoming scheme by the Ministry of Women and Child Develop-ment, to cover maternity protection through the pilot project IGMSY. The strength of the scheme lies in its attempt to provide maternity protection to women while the weakness lies in its exclusionary criteria. The paper demonstrated the shortcomings of such an approach. Women being married early and having more than two children, which are symptoms of social and gen-der-based inequalities, cannot be tied up to women’s entitle-ments. Within a context where women’s assertion of rights is sti-fled by familial, communi tarian and cultural institutions, there is a need to create an enabling environment for women to strive for substantive equality.

REVIEW OF AGRICULTUREJune 26, 2011

Farm Size and Productivity: Understanding the Strengths of Smallholders and Improving Their Livelihoods —Ramesh Chand, P A Lakshmi Prasanna, Aruna Singh

Spread and Economics of Micro-irrigation in India: Evidence from Nine States —K Palanisami, Kadiri Mohan, K R Kakumanu, S Raman

Water Harvesting Traditions and the Social Milieu in India: A Second Look —Shri Krishan

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Farmers’ Suicides in Punjab: A Census Survey of the Two Most Affected Districts —R S Sidhu, Sukhpal Singh, A S Bhullar

Reorienting Land Use Strategies for Socio-economic Development in Uttar Pradesh —Arun Chaturvedi, N G Patil, S N Goswami

National Water Policy: An Alternative Draft for Consideration —Ramaswamy R Iyer

Revitalising Higher Agricultural Education in India —J Challa, P K Joshi, Prabhakar Tamboli

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Economic and Political Weekly,320-321, A to Z Industrial Estate, Ganpatrao Kadam Marg, Lower Parel, Mumbai 400 013.

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Notes

1 Women’s organisations such as the All India Women’s Conference, Women’s Indian Association and the National Council of Indian Women that articulated concerns such as women’s voting rights, property rights, and birth control and participat-ed in the freedom struggle are considered the first wave of women’s movement (Chaudhari 1993).

2 Research Centre for Women’s Studies, SNDT Women’s University, Mumbai had produced a series of monographs on critical concepts edited by Maithreyi Krishnaraj – Patriarchy & Matriarchy (Gail Omvedt), Sexual Division of Labour (Vidyut Bhagwat); Domestic Work (Chhaya Datar); and Reproduction and Production (Gita Sen).

3 Means testing is an examination into the financial state of a person to determine eligibility for public assistance.

4 As of 1 July; Office of the Registrar General and Census Commissioner India, Report of the Technical Group on Population Projections Constituted by the National Commission on Population, May 2006.

5 Persons who were either working (or employed) and persons who were seeking/available for work (or unemployed) together constitute the labour force and labour force participation rate (LFPR) is obtained by dividing the number of persons in the labour force by total population. It is defined as number of persons in the labour force per 1,000 persons.

6 The usual principal activity status (UPS) is a measure of labour force, which reflects the status of a person over a reference period of one year. By this measure, a person is classified as belong-ing to the labour force, if s/he had been either working or looking for work during a longer part of the 365 days preceding the survey. The UPS measure excludes from the labour force all those who are employed and/or unemployed for a total of less than six months. Thus, persons who work intermittently would not be included in the la-bour force unless their days at work and unem-ployment totalled over half the reference year.

The Usual Principal and Subsidiary Status (UPSS) is a wider measure of labour force which includes even those who were outside the labour force on the basis of the majority time criterion but had been employed during some part of the year on a usual basis. In the NSS 61st Round Survey, all those who were either unemployed or out of la-bour force but had worked for at least 30 days over the reference year were treated as subsidiary status workers. Hence, UPSS is a hybrid concept incorporating both the major time criterion and priority to work status.

7 Ref No 9-5/2010-IGMSY. Note from Mr Vivek Joshi, Joint Secretary, Ministry of Women and Child Development, Government of India, 8 November 2010 on “Indira Gandhi Matritva Sahyog Yojana (IGMSY)-Conditional Maternity Benefit (CMB)”.

8 Total number of children a woman would have if she is subject to prevailing fertility rates at all ages from a single given year, and survives throughout her childbearing years (typically, 15-49 years).

9 The number of women who die as a result of preg-nancy and childbirth complications per 1,00,000 live births in a given year.

10 The number of death of infants under age 1 per 1,000 live births in a given year.

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This paper attempts to urge the need to posit “equality” and “difference” as reconcilable from an equity perspective that recognises “difference” and addresses the same with gender- sensitivity. Public policies and programmes should attempt to strive to attain substantive equality by addressing the gender-based inequalities and exclusion, rather than create

fresh grounds for consolidating inequalities. The terrain of maternity benefits and protection is a testing ground for re-working several binaries “production” and “reproduction”; “public” and “private”; “breadwinner” and “housewife”; “equal-ity” and “difference” that have dogged public policies all through these decades.

Reproductive Rights and Exclusionary Wrongs: Maternity Benefits

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