No Benefits for the Backbone

**Ankita Jain and Kinjal Alok

Introduction

“The test of progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little.” — Franklin D. Roosevelt.

In India, the hands that deliver babies and fetch toddlers into classrooms are the women behind the country’s flagship welfare programs, including ASHAs under the National Health Mission, Anganwadi workers under the Integrated Child Development Services (ICDS) scheme, and now, an expanding category of women gig workers on app-based platforms. These women often do so while hiding their own pregnancies with the fear of being marked as temporarily unproductive. The State heavily depends on its labour and reproductive care, but fails to recognise their hardships when they reproduce. This contradiction shows that the legal system is built on erasure by denying maternity rights to women workers who are central to the State’s welfare delivery. 

This blog highlights an often overlooked reality in public policy discourse, that the Indian state is the biggest informal employer of women, and under the guise of “voluntarism”, “honorarium”, and “platform neutrality” systematically avoids its obligations under the Maternity Benefit Act, 1961, thereby violating Art 42 of the Indian Constitution. These workers are not informal by accident, but by design, as their work is centrally monitored by the State, but its liability to pay maternity benefits is being evaded by the State itself.  This piece argues that the denial of maternity benefits to these women is not merely non-compliance; it is a breach of the constitutional commitment to social justice, gender equality, and dignity of labour.

Instead of framing this as a labour regulation gap, this article contends that even though these women are unrecognised in employment law, yet, they are functionally public employees and are entitled to receive maternity benefits. Through doctrinal research and critical analysis of statutory laws, this piece highlights how the state treats women’s reproductive needs as expendable in the larger economy. In doing so, the piece challenges the narrative of India as a welfare state and argues for maternity benefits to be seen as a non-negotiable constitutional guarantee, and not as a discretionary benefit.

Maternity Benefit Law in India: Progressive Text, Regressive Application

The Maternity Benefit Act,1961, was enacted to ensure that no woman is forced to choose between income security and the birth of a child. However, it has certain lacunae due to structural exclusions embedded within it. It applies only to those women who are working in “establishments” with 10 or more workers and excludes from its purview informal and casual laborers. The 2017 amendment, which increased the period of paid maternity benefit from 12 to 26 weeks, was seen as a progressive reform, but it failed to address the central that millions of women who are performing state-assigned duties outside the formal sector continue to face. Section 5 of the Act restricts eligibility to those who have worked “for not less than 80 days” in the twelve months preceding the expected date of delivery. This criterion is unsuitable and discriminatory for gig workers whose contracts are discontinuous, or ASHAS and Anganwadi workers who are not formally “employed” at all.

The Social Security Code, 2020, merely defines the terms “gig workers” “, platform workers”, and “unorganised workers”, but fails to create any enforceable entitlements. The worst part is that the Code reinforces a dangerous dichotomy between formal and informal work without disrupting the traditional “employer-employee” relationship, which governs access to rights. Moreover, the judicial reasoning propounded in Municipal Corporation of Delhi v. Female Workers (Muster Roll)(2000) has been selectively applied, where the Supreme Court extended benefits to daily wage workers in a municipal corporation, observing that “denying the benefit of this Act to casual workers or workers employed on a daily wage basis” would defeat the very purpose of the legislation. The Court thus treated Article 42 as enforceable through welfare laws. However, this principle has been selectively applied—while benefits have been extended to permanent and contract workers, women engaged in publicly funded welfare schemes or gig platforms remain excluded. In effect, the law secures motherhood for women in the boardroom while systematically denying the same to women at vaccination camps.

ASHA Workers: Voluntarism as Legal Evasion

ASHAS form the backbone of India’s public health infrastructure under the National Health Mission (NHM), yet their “voluntary” position exempts the State from treating them as employees. This isn’t an accidental oversight; it is a deliberate move to cut costs from state funds. ASHAS perform full-time, skilled labour. Including but not limited to maintaining digital health records, conducting home visits, and accompanying women to institutional deliveries. Yet they are only paid performance-based incentives, with no minimum wage, no fixed hours, and no social security. They aren’t granted any exemption even during pregnancy, leading to risks of miscarriage and infection. In the case of State of Gujarat v. Hon’ble High Court of Gujarat, SC has unequivocally held that “volunteers” under govt schemes could not claim equal benefits with regular employees, even though these volunteers are performing State-mandated essential public services on a full-time basis.

Legally speaking, denial of maternity entitlements to ASHAS violates Article 42 and Article 23, which prohibit all forms of forced labour. As held in People’s Union for Democratic Rights v. Union of India,1982, forced labour includes all work undertaken under coercive economic conditions. But when women perform state-assigned duties with no alternative available, and without any fixed income and maternity benefits, the agreement becomes one formed under economic duress. Furthermore, incentives given for completed institutional deliveries fail to acknowledge the prenatal or postpartum period, thereby monetizing childbirth consequences while rendering ASHAS’ reproductive journey invisible. This isn’t just an implementation failure, but a deeper structural inconsistency in the behavior of the State.

Anganwadi Workers: The Paradox of Childcare Without Care for the Caregiver

Anganwadi workers are the central figures in the Integrated Child Development Services (ICDS) scheme and are required to monitor the health of pregnant women, distribute food rations to children, educate young children, and track immunization records. Despite their huge role in childbirth, they are classified as “honorarium-based workers” by the State. Since they receive honorarium instead of wages, they are also left out of the provision of maternity benefits. The 26-week maternity leave is still a distant dream for many Anganwadi workers, as these leaves are inconsistent and come without any job security. 

This systemic denial of maternity rights to Anganwadi workers serves as a paradox because the State always strives to encourage these women to provide care for others’ children and mothers, but it withholds the same care for their own. The nature of “honorarium-based” payments dehumanizes the work they perform, recognizing it as temporary or supplemental, despite its permanent and indispensable nature. Moreover, these workers belong to marginalized communities, whose reproductive labour is doubly undervalued. This exclusion reinforces the social hierarchies that keep these workers invisible and voiceless. 

V. Gig Workers: The Erosion of Reproductive Rights in the Digital Economy

Gig workers are those who are employed in app-based platforms like Uber, Swiggy, and Zomato, for performing essential services like food delivery, caregiving, and domestic work. Though the gig economy has increased job opportunities, it has also deeply affected the participation of women in the gig economy by depriving them of maternity benefits. They aren’t given any entitlements because their work is governed by “service agreements” that classify them as independent contractors rather than employees. Due to this, gig workers are treated as “independent contractors,” and the State evades its obligation to pay maternity benefits. 

Moreover, these women employed as gig workers have to bear the costs of reproduction without the support of either the state or their employers. Even when these platforms offer “incentives” for work executed during maternity, these payments are unreasonable and non-binding, further exacerbating their vulnerability. Until maternity rights are extended to gig workers as part of a broader legislative reform of the gig economy, the gendered exploitation of women’s reproductive labor will remain an unfortunately significant aspect of the digital age.

Towards a Legal Framework for Maternity Entitlements in Public Employment

It is the need of the hour to bring radical reforms that recognise both gendered and structural inequalities and extend maternity benefits to all women, including ASHAs, Anganwadi, and gig workers. Therefore, the following reforms are proposed:

1. A new “Care Worker Identity” must be made for all individuals working in publicly funded care sectors, and this identity would formalize these workers’ roles, ensuring that they receive the same entitlements under the Maternity Benefit Act,1961, and the Social Security Code,2020. 
2. Rules should be made to impose a Maternity tax on private corporations that continue enjoying benefits from the unpaid reproductive labour of ASHAs, Anganwadi workers, and gig workers. A Corporate Social Responsibility mandate should be made that the corporations benefiting from these sectors have to contribute funds as taxes, specifically set aside for providing maternity benefits to workers in the care economy.
3. A Universal Social Security Fund must be established, and it would pool resources from the State, corporate organizations, and workers themselves. The fund will provide a comprehensive package, including maternity benefits, paid maternity leave, healthcare, and old-age benefits for the workers, irrespective of their formal employment status. 
4. A Digital Maternity Leave Tracker may be created, which would help workers to track their entitlements, report non-compliance, and have their claims verified by an independent third-party auditor. It would serve as both a compliance mechanism for employers and a support system for workers, ensuring that legal protections are adhered to and workers’ rights are recognized.
5. A Conditional Cash Transfer Scheme must be made that directly provides cash assistance to informal and gig workers during their maternity leave. This scheme would be funded by the State, and benefits could be availed only after showing adequate proof that women are unable to work and are fulfilling their maternal duties. 

Conclusion

The systematic exclusion of ASHA, Anganwadi, and gig workers from maternity benefits highlights a legal void in Indian jurisprudence. These women who work for their nation’s public health and welfare are denied basic reproductive rights that every woman deserves. The absence of maternity benefits is a powerful reminder of how India’s legal systems fail to acknowledge reproductive labour. This violation of natural justice shows not only gender inequality, but also economic and social vulnerability, leaving women in the clutches of the government by following outdated laws. 

To resolve this discrimination, India should embrace radical reforms that redefine the value of care work and the definition of “maternity benefit.” As Mahatma Gandhi once said, “The best way to find yourself is to lose yourself in the service of others.”. It is high time that we ensure that those women who have surrendered their whole lives in the service to the nation receive the rights and dignity they deserve. Until that happens, India fails as a welfare state not only for its workers but for all those advocating the ideals of justice and equality. 

**Ankita Jain is a 4th Year Law Student at the Maharashtra National Law University, Chhatrapati Sambhajinagar.

**Kinjal Alok is a 4th Year Law Student at the Maharashtra National Law University, Chhatrapati Sambhajinagar.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.