The Third Child Norms

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TOPIC: General Studies 2

• Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

In News: Uttarakhand High Court has struck down a state government rule denying leave to women employees for the birth of their third child as “unconstitutional” and said it was against the “letter and spirit” of the Constitution that calls for “just and humane conditions of work and maternity relief”.

The court said the second provision of Fundamental Rule 153 of the Uttar Pradesh fundamental rules, as adopted by Uttarakhand, goes against a central act as well as the Article 42 of the Constitution.

“This proviso is contrary to Section 27 of the Maternity Benefit Act, 1961. Section 27 of the Act, 1961 does not prohibit, in any manner, to grant of maternity leave to a female government servant, who has already two children at the time of submission of an application for maternity leave, after giving birth to a third child,” the single bench of Justice Rajiv Sharma ruled.

Justice Sharma gave the directions while hearing a writ petition of Urmila Masih, who had applied for a maternity leave for almost six months in 2015. The court issued the orders on July 30 but its copy was made available on Thursday.

The court directed the state government to provide leave to Masih, who belongs to Haldwani in Nainital district and works as a nurse at a government hospital, within six weeks. Masih had said that the government’s rule to not provide maternity benefits in case of a third child violates Article 42 of the Constitution of India and Section 27 of the Maternity Benefit Act. 

The government challenged the order of the single bench by filing a special appeal and contending that the petitioner could not claim benefits of the maternity act as she already had two children and could not be granted maternity leave for her third child in consonance with the “second provision of the fundamental rule 153“.

Article 42 of the Constitution 

• Provides for “just and humane conditions of work and maternity relief” “
• Argument by the Court: Article 42 of the Constitution is under directive principles of state policy and its provisions cannot be enforced.

Maternity Benefit Act of India

The Maternity Benefit Act, 1961, protects the employment of women during the time of her maternity and entitles her full paid absence from work to take care of her child. It is applicable to all private and government establishments, employing 10 or more people.

• An amendment to the maternity benefit act was passed in the Rajya Sabha in August 2016 and in the Lok Sabha in March 2017, and received an assent from President of India in March 2017, with its provisions coming into effect from April 1, 2017.
• The amendment increased the duration of paid maternity leave available for women employees from the 12 weeks to 26 weeks and in case of women, who are expecting their third child, the duration of paid maternity leave was fixed at 12 weeks.

Connecting the Dots:

1. Do you agree with the decision? Discuss the implications of your answer.