The recent landmark Supreme Court judgment on K Uma Devi vs State of Tamil Nadu pronounced on May 23 is significant for recognising maternity rights as a fundamental right (FR) under Article 21 of the Constitution.

The judgment is hailed as historic, marking a significant advancement in the protection of rights of working women, promoting job security and ensuring access to maternal and child care.

The Court has extensively drawn from earlier judgments on the matters of reproductive rights and maternity benefits.

The most salient feature of the judgment is the length at which the Court referred to International Conventions and instruments i.e. Universal Declaration of Human Rights, United Nations Economic and Social Council, Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), Maternity Convention C183 (2000) of the International Labour Organisation (ILO) to highlight requirement of ‘special assistance and social protection’ to working women before and after childbirth.

In a nutshell, ILO’s Maternity Protection Convention C183, apart from promoting right to avail maternity leave, recognises that women are reinstated in the same position after the maternity break.

The judgment is timely in the context of addressing the challenges women face during their employment, their sustenance in the labour force and their overall well-being.

MB Act

The Court has taken note of the Maternity Benefit Act 1961 as ‘normative framework’ to align statutory rights with service conditions of women employment without any discrimination. The Court acknowledged ‘women are now sizeable part of workforce’ and the State is ‘obligated to act’ to deliver reproductive-maternity rights to women employee in the country in order to ensure their equal participation in workforce.

It has been observed that in countries with effective maternity protection and care policies, the number of women in the workforce has significantly increased and they have remained employed for longer duration.

ILO Report on ‘Care at Work: Investing in care leave and services for a more Gender Equal World of Work’ in 2022 based on a survey of 185 countries informed that 123 countries had provisions for fully paid maternity leave which benefits 90 per cent of mothers globally though leave payment in 13 countries remains less than two-thirds of prior wages.

However, India has joined the league of 42 nations that provide maximum paid leave (26 weeks) for more than 18 weeks i.e. surpassing C183 of ILO at length and making it one of the top nations across the globe.

Now, the MB Act covers adoptive and commissioning mothers with 12 weeks maternity leave benefits since 2017 along with flexible working options. The court recognised the importance of an adequate and generous maternity scheme for women employment, as maternity is not just a welfare provision; rather it enables a woman worker to subsist in work and also allows her to balance the competing demands of work and family life while retaining her efficiency and output.

Despite being a landmark judgment, K Uma Devi Vs State of TN case also raises several pertinent questions. Will the coverage of maternity right as fundamental right shall remain restricted to only women employees in ‘public sector’ or it shall be applied universally to all women whether employed in permanent/regular/ FTEs/contractual or in any standard or non-standard forms of employment?

Funding issues

Secondly, what about women in informal sector who make up majority of women workforce? How to streamline them in the fold of this judgment? Now, when employers cannot plead ignorance or avoid bearing the cost of maternity without any exemption or limitations, the major question pertains to financing this fundamental right.

For large corporate and conglomerates financing the maternity right was never a problem but the challenge remains with the employers of Micro Small and Medium Enterprises (MSMEs). Even ILO acknowledges these financial implications for individual employer who bear the double costs of maternity leave and also the cost of employee replacement.

ILO standards have highlighted that employers may not be individually liable for direct cost of maternity and cash benefits; rather, it should be routed through social insurance or public funds or non-contributory social assistance particularly for women in the informal sector and self-employed women. Such initiatives may result in curbing discriminatory practices in the labour market.

In the Indian context, this financing part has always been an elephant in the room while ensuring maternity benefit to working women.

For example, first maternity protection law of the country i.e. Bombay Maternity Benefit Act of 1929, had prescribed for ‘non-contributory’ and solely employer funded maternity benefits to women workers in factory.

Though the Supreme Court has acknowledged the spirit of the maternity legislation i.e. MB Act and recognised the adequacy and scope of coverage of the legislation yet its effective implementation depends upon solid ‘support institutions of financing this fundamental right’.

From a policy perspective, a well-developed maternity financing system such as a Universal Maternity Fund aligned with ILO guidelines could help in addressing the existing gaps in maternity benefits financing.

The ILO’s World Social Protection Report 2024-26 said several countries have mixed models on maternity financing, with a majority of them having routed it through social insurance, national social security systems and tax financed employment related schemes and very few had employers covering full cost.

To make the Uma Devi judgment ‘a living reality of many a millions women of this country’, we have to learn from the experiences and best practices on maternity financing across the world.

These experiences may be instrumental in addressing the challenges in extending maternity benefits to the informal sector and those employed in temporary jobs.

Samantroy is Fellow, VV Giri National Labour Institute, Ministry of Labour and Employment; Tiwari is Regional Labour Commissioner (Central), Thiruvananthapuram. Views are personal

Published on June 21, 2025