Report No. 259

6.11 Crèche facilities are, within the Indian context, provided through a range of legislations, which are sectoral, with little uniformity, and can only be availed by women employees working in the organized sector. These statutory provisions for crèche facilities under various legislations were added to reduce occupational segregation and encourage flexible working for women. But women workers in the unorganized sectors such as street vendors, rag pickers, head load workers, garment workers, agricultural labourers are not able to avail the statutory benefit of crèche facilities for their children.

6.12 For example, The Factories Act, 1948 mandates any establishment with more than 30 women workers to establish crèche facilities for care of children and infants. The onus of providing crèche facilities is on owners of such establishments, who are required to provide adequate clean and sanitary accommodation under a trained caregiver.65

The provisions relating to crèche are also given under Section 14 of the Beedi and Cigar Workers Act, 1966, Section 44 of the Inter State Migrant Workmen (RECS) Act, 1979, Rule 25 (vi) of the Contract Labour (R&A) Central Rules, 1971,66 Section 35 of the Building And Other Construction Workers (RECS) Act, 1996 (the number of required women workers are fifty or more), Section 8 of the Plantation Labour Act, 1951.67

One of the detailed labour law regulations about crèche is the Mines Crèche Rules, 1966,68 where rules elaborate on standards of crèche, including the structure of the room, ventilation, flooring, sanitation, latrines and bathrooms for children, provision of staff, medical arrangement, diet of children etc.

The Rules also require the crèche to be open while the women are at work, irrespective of day or night, with adequate staff. The problem remains that these laws providing for crèche facilities are exclusive and limiting as they only provide facilities for children of women employees involved in certain specified establishments and the primary providers continue to be the owners of such establishments.

65 Section 48, The Factories Act, 1948.

66 The required number of women workers is 20 or more both under the Inter State Migrant Workmen (RECS) Act, 1979 and Contract Labour (R&A) Central Rules, 1971

67 The number of required women workers are fifty or more both under the the Building And Other Construction Workers (RECS) Act, 1996 and the Plantation Labour Act, 1951

68 This was enacted by the Central Government as per power conferred under Section 58 (d) of the Mines Act.

6.13 Since women in unorganized sector are ousted from the benefit of statutory crèche facilities, the Rajiv Gandhi National Crèche Scheme for the Children of Working Mothers becomes important to consider. Under the Scheme, the state provides assistance to NGOs for running crèches for infants.

This scheme was brought forth with the objective that working mothers from poor families requires institutional support for young children and reach of child day care services for working women in the organized and unorganized sector should be addressed. This scheme specifically provides for participation of 50% of children from BPL families. However, the scheme specifies users fee @ Rs. 20/- per child per month to be collected from children from BPL families and Rs. 60/- per child per month from other families.

This provision must be reconsidered by the State as providing for young children should be a state responsibility and the payment of this fee might be difficult for single mothers and widows of poor families, considering the abysmally low payment in unorganized sector and inflated cost of living, in the current scenario. A statutory framework similar to that in Finland is recommended, to ensure a statutory right to childcare by the state for all young children.

6.14 Internationally, Philippines has a good model for early child care and education. In addition to the Philippines ECCD Act, 2009, Philippines provides for its children through the Early Years Act, 2013. This law recognises 0-8 years of a child's life as the first crucial stage of educational development. It mandates that the age from 0-4 years shall be the responsibility of the ECCD Council and the responsibility to help develop children in the formative years between age 5 to 8 years shall be with the Department of Education.69

The Act requires the State to institutionalize a National system for ECCD that is comprehensive, integrative and sustainable, involving multi-sectoral and inter-agency collaboration at national and local levels, family and communities, public and private sectors, NGOs, professional associations and academic institutions.70 Inclusive models for early child development such as those found in Philippines should be encouraged in India to provide holistic care and education to children under six.

69 Section 2, Declaration of Policy, Early Years Act, 2013.

70 Id.

6.15 Another legislation that is relevant from the point of view of "Care of Child" is the Maternity Benefit Act, 1961. The Act is crucial with regard to health of the mother as well as the child, but it is no less important when one talks about ensuring care of child. We are conscious that many aspects of the Act have already been discussed in Chapter V dealing with "Early Childhood Development : Health and Nutrition", yet it may not be irrelevant to reiterate some of the points already made there.

After birth of child during initial period when she is unable to perform her duty due to her health condition, the child's care would become most vulnerable if appropriate maternity benefit is not extended to her. If the woman is not able to give quality time to her child because of fear of losing job or a wage-cut the real victim would be the child.

Thus keeping in view the concerns about health and proper care of mother and child a provision was inserted in the Maternity Benefit Act, 1961 that entitles Indian women employed in factory, mine or plantation including those belonging to Government or an establishment wherein 10 or more persons are employed on any day preceding 12 months to avail the benefit of 12 weeks maternity leave.

6.16 Taking a progressive step and acting on the recommendations of Sixth Pay Commission that the Central Government has recently authorized woman employee to avail maternity leave up to 180 days71. Significantly, the memorandum issued in this regard reads "recommendations of the Sixth Central Pay Commission relating to enhancement of the quantum of Maternity Leave and introduction of Child Care Leave in respect of Central Government employee".

The amended rules thus provided further that women employees having minor children may be granted Child Care leave for a maximum period of two years. There is need for States also to follow the same practice. However, more important is to ensure that the Act is amended authorizing maternity leave up to 180 days. Correspondingly, the private sector too needs to adopt these progressive measure. Although the problem would continue to remain acute and persistent in case of those women who are engaged in unorganized sector.

71 Government of India, Department of Personnel & Training's O.M. No.13018/2/2008-Estt(L) dated 11th September, 2008

6.17 While 180 days of maternity leave is authorised for Central government most of the private organisation provides 90 days of maternity leave to its women employees. Women in the private sector are often hard-pressed for leave beyond the maternity break, besides the regular quota of earned, casual and medical leave. Maternity benefits are, thus open to interpretation by individual companies. There are no uniform rules for female employees in private organizations and they are treated by varying standards when it comes to essential benefits like maternity and child care leave (CCL).

6.18 To an unstarred question as recent as August of 201572 in Rajya Sabha by a Member of Parliament on the future plan of government to formulate any policy or guidelines laying down minimum specifications for the provisions of paid maternity leave to women employed by organizations and companies in the private sector, the Ministry of Labour and Employment answered the query by informing about the proposal which is under consideration to increase the existing maternity leave from twelve weeks to twenty four weeks under Maternity Benefit Act, 1961 but maintained silence on formulating governmental policy or guideline extending the benefits of Maternity Benefit Act to women employed in private sector.

Above clearly demonstrates the need to bring changes in Maternity law and Rules to ensure that women in private sectors are entitled to benefits at par with their counterpart in government service and public undertakings.

72 Unstarred question no.-2641 by Shri Avinash Pande answered by government of India, Ministry of Labour and Employment, Rajya Sabha on 12th August 2015 available on
http://164.100.47.5/EDAILYQUESTIONS/sessionno/236/12.08.2015UE.pdf

6.19 To conclude discussion on ECCE it is suggested that the purpose of ensuring the right to ECCE as a universal justiciable right, it is imperative that special measures are incorporated within the framework to make ECCE available to all children and age groups. Proactive identification, outreach and special measures must be taken to provide for children with disabilities or illness, terminal or incurable disease; children with parents or guardians deemed unfit or unable to take care of the child; orphaned children; children belonging to marginalized families; children who have been victims of violence and/or trafficking etc.

Further, every child under six should have an unconditional right to crèche and day care, which is provided, regulated and operated by the State as provided for in the Act on Children's Day Care of 1973, Finland; trained personnel for the purpose of ensuring care to children should be given parity with primary school teachers;
States should lay down quality standards and norms for curriculum to be followed at pre-school and should conduct a periodic assessment of standards at crèches; users fee from single mothers, widows, tribal mothers of BPL families under the Rajiv Gandhi National Crèche for Working Mothers should be avoided so as to actually benefit mothers from unorganized sector; care for children under six at the hands of minors should be specifically prohibited and regulated.

6.20 With respect to education, in view of the Supreme Court Judgement in Unni Krishnan v. State of Andhra Pradesh and the aspiration behind Article 45 of the Indian Constitution, section 11 of the Right to Education Act should be made mandatory and should read as "with a view to prepare children above the age of three years for elementary education and to provide early childhood care and education for all children until they complete the age of six years, the appropriate Government shall make necessary arrangement for providing free pre-school education for such children"; further, keeping the Kerala RTE Rules as a model, all states should provide for pre-primary education and the provision should read as follows:

"The state government and the local authority shall provide free and appropriate pre-school education based on a Pre-primary Education policy that shall be formulated by the state government, to all children above the age of three years till they complete six years so as to prepare them for elementary education. For this, Pre-school Centres shall be established in all government and aided schools in a phased manner within three years from the date of notification of the Rules.

A unified child-friendly curriculum shall be developed by the academic authority for these centres, which shall have linkages with the Anganwadies for providing ICDS services to all the children. The minimum academic and professional qualification of pre-primary teachers shall be as prescribed by the National Council for Teacher Education."; all states must also ensure quality teaching at the pre-primary level by adopting Rule 8 of the Kerala RTE Rules.