“Women’s sexual and reproductive health is related to multiple human rights, including the right to life, the right to be free from torture, the right to health, the right to privacy, the right to education, and the prohibition of discrimination.”
In Laxmi Mandal & Ors. v. Deen Dayal Harinagar Hospital & Ors., the Supreme Court of India acknowledged that reproductive rights are covered under Article 21 of the Constitution of India, i.e. ‘Protection of Life and Personal Liberty’. A healthy pregnancy requires proper pre-natal care, in some cases assisted childbirth from a trained attendant (physician or midwife) and accessible services during and after pregnancy. Poverty, insufficient health care and other socio-economic barriers make quality health services inaccessible to women.
Women working in the unorganised sector are particularly vulnerable as they continue to work in harsh circumstances till the last days of their pregnancy which can cause complications. Lack of resources pushes them to resume work soon after childbirth, even though their bodies might not permit it. Constant work also limits their ability to breastfeed exclusively during the baby’s first six months, which itself is unhealthy for the growth of the child.
There are many government schemes that address these circumstances by providing pregnant and lactating woman (P&LW) with financial assistance. This article highlights the implementation of such policies for the unorganised sector and related pitfalls.
The applicability of the Maternity Benefit Act, 1961 (MB Act) has been deliberately restricted to the exclusion of women employed in the unorganised sector. For example, proof of continuous employment for a period of 80 days in the twelve months preceding the date of delivery is a mandatory condition to avail benefits under the MB Act. Women in unorganised sectors often work in unstructured conditions, with multiple employers and are unable to fulfill these conditions. The recommendations by the Law Commission of India to include women from unorganised sectors within the ambit of the MB Act have not been implemented.
The Unorganised Sector Workers Act, 2008 defines unorganised sector workers as those who are home based, self-employed or wage workers in an enterprise with less than 10 employees. This Act mandates the central government to formulate a health and maternity benefit scheme for workers covered by it. In reality, this definition also excludes many women working in the unorganised sector, including agricultural labourers, seasonal workers, domestic helps or construction workers.
A woman labourer can claim cash assistance under the Maternity Benefit Programme, 2017 (MBP). The Ministry of Women and Child Development formulated MBP to comply with the provisions of Section 4(b) of National Food Security Act. It provides limited cash benefits to P&LW who are below the poverty line to make up for the wage loss. This in turn is believed to incentivise women to take rest after delivery and breastfeed her child during the first six months.
MBP was introduced as the Indira Gandhi Matritva Sahyog Yojna (IGMSY) in 2010 and implemented on a pilot basis in 52 districts. Under it, P&LW were to receive Rs 6,000, out of which Rs 1,000 was to be disbursed after early registration of pregnancy, Rs 2,000 after about six months and the remaining after birth registration and confirmation of the first cycle of vaccinations. To register, women must complete the form provided in government hospitals, which should include bank details, and be submitted along with a copy of Aadhaar card.
A shortcoming of MBP in comparison to IGMSY is that the former is applicable to only the first live birth, whereas the latter covered first two live births. Consequently, P&LW with more than one live birth are now ineligible. Even after crossing the hurdles of eligibility, their struggle continues due to inordinate delays in the process of disbursement by government agencies.
In the light of the directions given in the Laxmi Mandal case (mentioned earlier), a contempt petition was filed before the Delhi High Court on behalf of 5 women who were denied the benefits under the IGMSY scheme. It was argued that the Ministry of Women and Child Development (respondents) were in contempt of the directions issued in the Laxmi Mandal case. The Court directed the Respondents to disburse the funds to the petitioners, who had been awaiting the benefits for months.
In light of above, the implementation mechanism needs an urgent remedy as P&LW cannot be expected to await court directions for the benefits they were entitled to during pregnancy or childbirth.
 (2010) 172 DLT 9
Iti Pandey – Program Analyst, India, iProbono