Are Indian Bank's Curbs on 12-Week Pregnant Women Constitutionally Valid?

The bank clarified 12-week pregnant candidates can join on production of a certificate from a medical practitioner.

The bank reportedly said that on the completion of 12 weeks of pregnancy, the candidates are allowed to join on production of a fitness certificate from a medical practitioner stating that they are fit for taking up employment in the bank. Image used for representation purpose.

(Photo Courtesy: The Quint)

The Delhi Commission of Women Chairperson Swati Maliwal, on Monday, 20 June, issued a notice to Indian Bank amid reports of the bank preventing women who are “more than three-month pregnant” from joining service, despite being selected through due process.

Pointing out that they have learnt that such women would be considered “temporarily unfit” and would be denied immediate joining, Maliwal observed that the delay would subsequently lead to loss of seniority for the women.

“This is a very serious matter. The alleged action of the bank appears to be discriminatory and illegal as it’s contrary to the Maternity Benefits provided under ‘The Code of Social Security 2020.’ Further, it discriminates on the basis of sex which is against fundamental rights guaranteed under the Constitution of India.”

Delhi Commission for Women Chairperson Swati Maliwal

Meanwhile, according to a report by The Wire, the All India Democratic Women’s Association (AIDWA)’s had also condemned this decision of Indian Bank, and had further pointed out:

“The Tamil Nadu Grama Bank (TNGB) sponsored by Indian Bank has also issued similar guidelines prohibiting women with more than six months of pregnancy from joining its services and laid a condition that they would be allowed to join only after three months of delivery after medical examination. This retrograde clause is highly discriminatory to women.”

Indian Bank's Statement

Amid all the outrage bubbling over this evidently discriminatory policy, the Indian Bank has clarified in a statement that there is no new circular and that “we wish to inform that the bank has not made any changes to the existing guidelines.”

They did, however, according to ANI, state:

- In case of pregnancy, which is less than 12 weeks, the candidates are considered as fit for joining the bank (emphasis added)

- On the completion of 12 weeks of pregnancy, the candidates are allowed to join on production of a fitness certificate from a medical practitioner stating that they are fit for taking up employment in the bank (emphasis added)

It may be worth pointing out here, that the bank’s reported clarification does not do much to dilute the allegations of discrimination coming their way.

This is because even if a candidate can in some way join post 12 weeks of pregnancy, they still have to go through the effort of reaching out to a medical practitioner for permission to do bank-work.

If not doing so, they are automatically rendered “temporarily unfit”. Not only does this strip pregnant women off their agency and choice, it also puts them at a greater disadvantage at the workplace than their male counterparts.

When SBI Had Done Something Similar...

When the State Bank of India had (on 31 December 2021) reportedly informed its local offices of its revised medical standards, as per which, a woman who was more than three-months pregnant could not join work until after four months of delivering a child, the staff union had dubbed it an attempt to subvert social security code on maternity benefits.

According to The Hindu, the union had pointed out that the code entitles a woman to payment of average daily wage during maternity leave, nursing breaks, permission to visit a creche, and also renders unlawful any attempt by the employer to discharge a pregnant employee.

The bank had, amid vehement criticism, withdrawn the order shortly afterwards, but the similarities between the contentious SBI order (as reported by media outlets) and Indian Bank’s guidelines for pregnant women are uncanny.

It is also worth pointing out that until a woman has effectively joined employment, she is usually not entitled to statutory maternity benefits.

A study conducted by TeamLease, according to a 2018 report by Times of India, showed a dip in employment of women workers in the immediate aftermath of the enforcement of the Maternity Benefit (Amendment) Act (2017). The study reportedly estimated a net job loss of 11-18 lakh women for the fiscal year 2018-19.

This, even when the Act was brought into force with the aim of increasing the participation of women in the workforce, by increasing the (paid) maternity leave available for working women from 12 weeks to 26 weeks.

Thus, the study seemed to suggest the presence of a bias amid several companies against hiring of women entitled to vast (and undoubtedly necessary) maternity benefits.

What Does the Constitution Say?

While it has been argued in similar cases (like the SBI case) that such circulars are used to subvert the benefits provided by the Social Security Code, a regulation preventing a 12-week pregnant woman from joining work is not directly illegal as per the code. This is because the code doesn't dwell into the question of a woman being prevented from going to work, when she wants to, at all.

Indian Bank's regulation, however, is not allowed by the Constitution. Here's how:

Speaking to The Quint about Indian Bank's reported circular, Supreme Court advocate and women and child rights activist Sonali Shelar pointed out that “the constitutional spirit under Article 15 (1) dictates women not be discriminated against and be given equal opportunities.”

Article 15 (1): The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

Shelar also noted that in the 2016 judgment of Neetu Bala vs Union of India, the Punjab and Haryana High Court clearly states that denying women employment on the basis of pregnancy is arbitrary and illegal.

“It also says any such denial is a violation of Constitutional right against discrimination under Articles 14, 16 and 42,” Shelar added.

Article 14: Equality before law

Article 16: Equality of opportunity in matters of public employment

Article 42: Provision for just and humane conditions of work and maternity relief

The High Court had also gone on to point out that the same is against express provisions of international conventions — such as the Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified and acceded to by India.

Further, the court held that “forcing a choice between bearing a child and employment” interferes both with a woman’s reproductive rights, as well as her right to employment.

“Such an action can have no place in modern India,” the court added.

In S Amudha v Chairman, Neyveli Lignite Corporate, the Madras High Court had, in as early as 1989, revoked employment regulations dubbing an over four-month pregnant woman “temporarily unfit” for employment.

“In these days of acute unemployment, to deprive a woman of her right to earn in spite of her selection is something which we cannot appreciate at all,” the Court said.

“To say that she is temporarily unfit is something which cannot stand scrutiny from the medical point of view. It is not an uncommon sight in India to see a woman in advanced stages of pregnancy working in agricultural fields, on roads or even in mines where there is every risk. Yet, they dare work, compelled by poverty and by the dire necessity of life.”

Madras High Court

The court held that the regulation was violative of fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India.

It may be pertinent to note that private institutions are not part of the State, and therefore their regulations aren’t necessarily liable to be struck down on the above-mentioned constitutional grounds.

However, as per the test laid down in RD Shetty v Airport Authority of India, “The existence of a deep and pervasive State control” and financial resources provided by the government, “may afford an indication that the Corporation is a State agency.” Thus the fact that Indian Bank is a nationalised bank owned by the government of India (Union Ministry of Finance) makes it possible for the evidently discriminatory regulation to be struck down on grounds of it being unconstitutional.

Structures Created by Males for Males

According to a 2019 report by World Bank, India has among the lowest female labor force participation rates in the world.

In a 2021 judgment, in a batch of pleas by women officers challenging the rejection of their permanent commission applications, the top court had asked the army to reconsider their applications. The judgment authored by Justice DY Chandrachud also said:

“We must recognise here that the structures of our society have been created by males and for males. As a result, certain structures that may seem to be the "norm" and may appear to be harmless, are a reflection of the insidious patriarchal system.”

Childbirth is frequently a choice made by families collectively. In recognising structures “created by males and for males”, there is room to note that for women alone to bear the brunt of that choice is a discriminatory consequence.

It is also therefore an unmissable reflection of "the insidious patriarchal system", along with being in contravention of our constitutional values.