The provision of crèche facilities, initially mandated by the Factories Act of 1948 specifically for women in factories, was expanded to a wider scope with the Maternity Benefit (Amendment) Act of 2017. This amendment, adding Section 11A to the Maternity Benefit Act of 1961, imposed a statutory duty on employers to provide childcare support. With the advent of the new labour codes, these crèche-related provisions have been integrated into both the Code on Social Security, 2020 (SS Code) and the Occupational Safety, Health and Working Conditions Code, 2020 (OSH Code).
Despite these incorporations seeming like straightforward replications of previous regulations, they introduce some ambiguity about the intended beneficiaries. The question arises: are crèche facilities meant exclusively for women employees, or do they extend to all employees, regardless of gender?
The Code on Social Security: Gender-Neutral or Gender-Specific?
Section 67 of the SS Code echoes the obligation to provide crèche facilities, mirroring the provision in the Maternity Benefit Act of 1961. It mandates that establishments with fifty or more employees must provide such facilities, either independently or in conjunction with shared amenities.
While the term “employees” suggests a gender-neutral requirement, the provision’s placement within the chapter on maternity benefits implies it’s targeted at women. The chapter focuses on maternity-related protections, and the duty to inform employees about crèche facilities is specifically directed towards women employees.
The SS Code also introduces the option of replacing a physical crèche with a monetary allowance. As per the Social Security (Central) Rules, 2026, this substitution requires agreement with a negotiating union or council, or with the majority of employees if such bodies are absent. This allowance is available to widowers and single parents with children under six, suggesting some degree of gender neutrality.
The OSH Code: A Broader Welfare Approach
Conversely, the OSH Code situates its crèche obligations within a general welfare framework rather than under maternity-specific provisions. Section 24 empowers the government to require establishments with more than fifty workers to provide crèche facilities, covering sectors like factories, mines, and construction. Here, the emphasis is on workplace welfare, not solely on maternity-related concerns.
According to the Ministry of Labour and Employment’s FAQs from March 16, 2026, the crèche facility under the OSH Code is gender-neutral, applying to all employees once the fifty-worker threshold is met.
Comparing Crèche Provisions: OSH Code vs. SS Code
The single integrated annual return under the new Codes suggests that the crèche allowance in the SS Rules serves as an alternative to the physical facility mandated by both Codes. However, this raises questions about the statutory requirement to provide a crèche facility and its potential substitution with an allowance.
Both the SS Code and OSH Code stipulate a gender-neutral threshold of fifty workers. Yet, the SS Code’s framework, aligned with maternity and social security benefits, seems to restrict the crèche allowance to women, widowers, and single male parents, creating an interpretative inconsistency. If the allowance substitutes the facility, and it’s only payable to specific groups, this raises the question of whether the facility itself is also limited to these groups.
A harmonious interpretation might suggest that while the OSH Code mandates a general welfare facility, the right to avail of it under the SS Code is primarily for women and other specified categories. Thus, the OSH Code triggers the establishment-level obligation, but the SS Code governs access to and enjoyment of the benefit.
Ultimately, both Codes aim to enhance workplace welfare and support women’s workforce participation. The legislature’s choice to limit the crèche allowance to certain categories indicates its intent, but a broader interpretation for the crèche facility might require further judicial or regulatory clarification.
About the Authors: Ashish Philip is an Executive Partner, Astha Sinha is an Associate Partner, Priyanshi Rachchh is a Senior Associate, and Rishita Sethi is an Associate at Lakshmikumaran & Sridharan Attorneys.
Disclaimer: The views expressed are those of the authors and do not necessarily reflect those of Bar & Bench.
