Legal Viability Of Non Pregnancy Clause In India

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By Ananya Yadav from Amity Law School, Noida

Abstract

Motherhood and pregnancy are said to be the most beautiful and pure chapters in a woman’s life. It is sad to see how people make these the cause of the downfall of a woman’s career. This piece examines the Non-Pregnancy clause and its legal viability in India. 

The Non-Pregnancy Clause is a clause that forbids pregnancy during the term of service or employment. It states that in case of breach of such clause, it would result in termination of the employment relationship, and a suit for claiming damages could be filed. 

Introduction

The pregnancy prohibitory clause is a devil in disguise that snatches away the opportunity of a lifetime as well as invades into the privacy of their female employees/workers and try to manoeuvre them.

We’ll be eyeing towards following statutes and analyse the legal viability of the NON-PREGNANCY CLAUSE-

  • Maternity Benefit Act 1961
  • Constitution of India – Fundamental Rights
  • Indian Contract Act, 1872

Maternity Benefit Act 1961

To safeguard the pregnant women and provide them with the utmost care and dignity, the Maternity Benefit Act 1961came into place.

The Act ensures that no women face discrimination on the grounds of pregnancy. The Act governs the various maternity benefits to women along with the provisions to safeguard women from dismissal during the term of their pregnancy.

Jurisdiction Of The Act

  • Maternity Benefit Act applies to each and every establishment i.e. factories, mines, plantations, shops belonging to the government, every shop wherein ten or more persons are employed, etc.

Section 12 

Dismissal During Absence or Pregnancy

  • One of the many Obligations employers face under this Act is that they cannot terminate the services of a woman employee who is on maternity leave or any time during pregnancy. 
    • This section under sub-clause (1) and (2) clearly states that it is unlawful for the employer to “discharge or dismiss” a woman employee on account of absence or any time “during the pregnancy”. 
      • However, the proviso of Section 12(2)(a) clearly states that a woman can be dismissed on the grounds of “Gross Misconduct.”
      • In such a case, an employer through a written order can dismiss women even without paying the maternity benefit or bonus if proved that the pregnant woman engaged in acts which amount to “gross misconduct”.
      • However, it’s mandatory for the organisation to provide a fair opportunity for her to present her position and stand against the charges to the internal enquiry impartially.

Remedies

  • A woman can appeal to such authority as prescribed within 60 days of the notice received from the employer regarding the dismissal and deprivation from maternity benefit or bonus.
    • The decision of the authority on such appeal will be final.
      • If the employer fails to pay the amount of maternity benefit entitled under this act or proven that he dismissed the employee on the grounds of her absence from work during pregnancy, he shall be liable to imprisonment extending to 1 year or with a fine extending to Rs.5000 or both.

Also, in Rupa S. versus Special Commissioner of Projects, 2015 SCC Online Kar 6552 

it was held that it is not necessary on the part of the women to reveal about pregnancy.

Part-3 of the Constitution of India 

Fundamental Rights

 The validity of the Non-Pregnancy Clause will be analysed in comparison with Articles 14, 15, and 21.

Article 14 and 15 – Right To Equality

Article 14 and 15 states that The State shall not deny to any person equality before the law and equal protection from discrimination on the grounds of sex, Caste, Religion, Place of birth.

However article 14 is not absolute, it permits classification but prohibits class legislation. 

The classification should not be arbitrary or evasive but must be based on some true and substantial distinction showing an equitable and reasonable nexus to the object.

In Air India versus Nergesh Meerza & Ors 1981 AIR 1829

The court advocated for extensive amendments to be made to “said pregnancy by a criterion of retirement upon the birth of the child should instead be introducing the place of increment close. The reasoning behind it being based on a public-health principle. Thereby deeming said regulation aspect is deemed as being arbitrary under article 14.”

The court held the clause regarding retirement and pregnancy unconstitutional and ordered for them to be struck down

EP Royappa Versus State of Tamil Nadu & Anr (1974) AIR 555, 1974 SCR (2) 348.

Supreme Court held that cessation of employment on the grounds of pregnancy amounts to arbitrariness and is invalid.


Article 21 – Protection of life and personal liberty

  • Article 21 states that no person shall be stripped of his life or personal liberty except, according to the procedure authorised by law.

The Act of preventing pregnancy and stealing away the right to maternity comes under the ambit of the right to equality and personal liberty under Articles 14,15 and 21 of the Indian Constitution. 

In Inspector (Mahila) Ravina versus Union of India

The CRPF withheld the promotion of a female inspector as she was incapable to attend a pre-promotional course because of her pregnancy. The Delhi High Court held that punishing a woman for pregnancy infringed Article 21, read in the light of Articles 40 and 45. 

Since the case concerned public employment, was held to be discriminatory as per article 16 of the Constitution.

It can be established that the non-pregnancy clause is violative under Articles 14, 15, and 21 of the Indian Constitution.

Indian Contract Act, 1872

  • Section 23 of the Act states that if the consideration Or object of an agreement /contract is unlawful, it is void.
    • The court observes it as ‘opposed to public policy’
      • Given the maternity benefit act and fundamental rights, it can be established that discrimination based on pregnancy is arbitrary and invalid in the eyes of the law. They are also opposed to public policy and hence such clauses in the contract or agreement can be deemed to be void/forbidden by law.

Conclusion

The non-pregnancy close prohibits pregnancy of women until completion of the term of employment. So far as the maternity benefit act 1961, it invalidates the dismissal of women any time during the pregnancy. Under the Indian contract Act, 1872 read with Fundamental rights under article 14, 15, 21, and the Maternity Benefits act 1951, establishes the non-pregnancy clauses to be against the public policy of India and hence invalid as per section 23 of the Indian Contract Act, 1872.

The courts have taken a stance in favour of the women who were pregnant however no conclusive provision/ precedent has answers to the legal viability of the clause. 

Also, there are no provisions available to safeguard females who wish to have a career and balance their future pregnancy simultaneously.

Since there is not much clarity on the same, the legislation should come up with proper law 

No clause should have the power to snatch away the right of motherhood from a woman and as much should not be used against them in attempts to make her career come crashing down.

References

  1. MATERNITY BENEFIT ACT, 1961
  2. https://www.peoplematters.in/article/diversity/legal-hr-can-you-fire-a-pregnant-woman-employee-16945
  3. Rupa S. versus Special Commissioner of Projects, 2015 SCC Online Kar 6552
  4. Constitutional Law Of India- Dr. J.N. Pandey
  5. Air India versus Nergesh Meerza & Ors 1981 AIR 1829 – ipleaders
  6. EP Royappa Versus State of Tamil Nadu & Anr (1974) AIR 555, 1974 SCR (2) 348
  7. Inspector (Mahila) Ravina versus Union of India
  8. https://www.mondaq.com/india/employment-and-workforce-wellbeing/955952/maternity-benefit-and-covid-19-rights-and-dismissal-during-covid-19
  9. https://paycheck.in/labour-law-india/maternity-and-work/maternity-rights-at-work
  10. Indian Contract Act, 1872

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