Report No. 259
A. Central Legislative Enactments
5.2.1 Despite the constitutional mandate and desire as expressed in Articles 15(3), 39(f), 45 and 47, and also in various legislations specifically dealing with children such as the Prohibition of Child Marriages Act 2006, the Juvenile Justice (Care and Protection of Children) Act, 2000, the Commissions for Protection of Child Rights Act, 2005 and the Children Act, 1960, there is no fully entrenched legal right to 'healthcare' and 'adequate nutrition' for young children. Considerable progress has been made in several other fields, but much remains to be done in regard to health and nutrition so far as young children are concerned.
In Sheela Barse v. Union of India, 1986 SCALE (2)230 the Supreme Court held that "The nation's children are a supremely important asset. Their nurture and solicitude are our responsibility. Children's programme should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with the skill and motivations needed by society.
Equal opportunities for development to all children during the period of growth should be our aim, for this would serve our large purpose of reducing inequality and ensuring social justice." The Supreme Court further stated that "A child is a national asset and, therefore, it is the duty of the State to look after the child with a view to ensuring full development of its Personality".
Despite this acknowledgement by the apex court, there is no Central statutory framework that expressly deals with child's right to health. No doubt there are some legislations have impact on health and nutrition status of young children. Following paragraphs are an attempt to look into and reflect upon some of these laws.
5.2.2 Health, especially the reproductive health of the mother and the health of the infant child are closely related. Recognizing this close relationship the Apex Court in a petition (popularly known as petition for right to food) filed by the PUCL held Central and State Government responsible for providing ICDS services including supplementary nutrition, nutrition and health, education, etc. not only to every child under the age of six but to pregnant women and lactating mothers as well - a clear endorsement of binding relation of mother and child's health People's Union for Central Liberties v. Union of India and Ors., Writ Petition No. 196 of 2001 order dated 13th December, 2006.
Further recognizing the special needs of pregnant and lactating mother and its relation to child's health that in Section 4 of the National Food Security Act, 2013 has made provisions entitling such women to "meal, free of charge during pregnancy and six months after the child-birth, through local Anganwadi, so as to meet the nutritional standards specified in Schedule II of the Act."
5.2.3 The Maternity Benefit Act, 1961 is an important piece of legislation that relates to the issue at hand. We will deal with this Act here very briefly as its detailed discussion appears in later chapter of this study. One of the major objectives of this legislation is providing complete health care to the women and her child when she is not able to perform her duty due to her health condition. There is need for maternity benefits so that a woman is able to give quality time to her child without having to worry about whether she will lose her job and her source of income.
5.2.4 Section 2 of the Act provides maternity benefits to women working in factories, mines, the circus industry, plantations and shops or establishments employing 10 or more persons except employees who are covered under the Employees' State Insurance (ESI). The Act provides for paid maternity benefits for a maximum of twelve weeks, i.e., of six weeks prepartum and six weeks postpartum.37
The Maternity Benefit Act makes it the responsibility of employers to provide for maternity benefits to the women in their employment. Oftentimes, employers avoid employing women in factories and other spaces, owing to these additional responsibilities that accompany such employments. This law only provides benefits to women employees working in certain specified establishments and completely exclude women in the unorganized sector.
37 Section 5(3), Maternity Benefit Act, 1961
5.2.5 Consequent to the Sixth Central Pay Commission relating to Maternity Leave and Child Care Leave, the provisions of the Central Civil Services (Leave) Rules, 1972 (CCS Rules) was amended so as to provide for maternity leave for 180 days38. The CSS Rules also provide for paternity leave for 15 days during the confinement of the employee's wife for childbirth.39 This is a progressive step taken by the Indian Government, but the Rules cover a very small section of people, i.e. Government servants appointed to the civil services and posts in connection with the affairs of the Union.40
There is need to consider that the Maternity Benefit Act is amended in accordance with the forward looking provisions in the Central Civil Services Rules, whereby maternity benefits should be increased from twelve weeks to 180 days. Provision of maternity benefits should be made obligatory on the State and not left to the will of the employers and should cover all women, including women working in the unorganized sector.
38 Rule 43 CSS Rules
39 Rule 43-A CSS Rules
40 Rule 2, CSS Rules