Gendered childcare in India: Time for ‘He’ for ‘She’

As a lawyer, and also a woman who may give birth to a child one day, the law tells me: I must contribute disproportionately to childcare. If a choice is to be made between childcare and work, I will be placed in a position to make that choice, with an obvious outcome. The law on maternity leave and the absence of the same on paternity leave in India creates a disparate burden on potential mothers to act as primary caregivers. The law tells me, I am unequal at home.

In her strong and empowering speech for the initiative ‘He for She’, UN Woman Goodwill Ambassador Emma Watson reflected on the importance of involvement of men and people of all genders to achieve gender equality. With such global mainstreaming of gender equality, India’s role in enabling equal treatment on the basis of sex and gender has also gained momentum. Many reforms on abortion law and permanent commission to women in the armed forces have been welcome. However, the real question is: has the State been able to ensure greater participation of men to ensure equality of the sexes? Laws that have taken the shape of protective (or beneficial) legislation have in fact often ignored the social context that encircle gendered issues. This has made a special case for childcare leave.

Legislated as a beneficial provision for women, the Maternity Benefit Act has no parallel statute providing for paternity leave in India. Childcare leave that is available to government employees till the child turns eighteen is also exclusively available to female employees. In this context, it is argued that while childbearing is a role specific to women, the law fails to account for child rearing as an equal responsibility of both partners.

The law at present

At the outset, it is important to visit the current law on maternity, paternity, and childcare leave in India.

Under the State’s duty to provide maternal care as per Article 42 of the Constitution, the Maternity Benefit Act, 1961 (amended in 2017) mandatorily provides for 26 weeks of paid maternity leave by every establishment, public or private, with 50 or more employees. It also provides for other benefits such as a creche facility in or around the establishment. The state governments of Haryana, Bihar and other states have extended the benefit of this leave to a period of 52 weeks.

On the contrary, there is no central legislation that mandates paternity leave in establishments in India. The only legislative scheme for paternity leave is for government employees through the Central Civil Service (Leave Rules), 1972 and similar rules for state government employees. The Rules provide for 15 days of paid paternity leave before childbirth or up to 6 months from the date of the delivery of the child. Very few private organisations provide for a similar 14-15 day period of paid paternity leave as a matter of their own initiative. Needless to state, the unorganised sector remains entirely precluded from any provision for paternity leave.

The Central Service Rules also provide for an additional paid childcare leave up to two years for government employees that can be availed by women employees only, till the child reaches the age of 18. The proposal to provide this leave to both partners has not yet fructified. Pertinently, even this proposal only seeks to ensure greater efficiency of government employees and ease of living and is not aimed to further gender equality at home by dispelling the notion of women as primary caregivers.

Protective legislation under Article 15(3) may perpetuate inequality

Article 14 of the Constitution provides that every person is equal before the law and enjoys an equal protection of law. Any discrimination on the grounds of sex/gender is prohibited under Article 15. This, however, does not prevent the State from making special provisions for the benefit of women under Article 15(3). The purpose is to remedy the historic disadvantage faced by women and to empower them. Any legislation drafted hereunder cannot be subject to a constitutional challenge on the ground of unequal treatment alone. The Maternity Benefit Act and other childcare leave are enacted under this provision, coupled with the State’s duty under the Directive Principles to ensure maternal health. Drafted with this good intention of empowering mothers, gender-specific parenting rights may, however, do more harm than good.

Protective legislation, however well-intentioned, must be understood in the social context under which benefit is sought to be provided. Notable academician Professor Sandra Fredman in her book on Discrimination Law (2011) has cautioned against protective legislation which might appear to remedy disadvantage, but in fact reinforces sex stereotypes for women. In a similar tone, the Supreme Court has also warned against the dangers of protective legislation and held that it must not create classifications that perpetuate legal, social or economic inferiority of women.

Reason being that such classifications may perpetuate sex stereotypes and therefore contribute to discrimination rather than overcome it. To achieve this, the Court has also consistently rejected the State’s attitude towards pregnancy, motherhood and domestic obligations towards children and family as roles only being attributed to women. These stereotypes, premised on assumptions about socially ascribed roles of gender which discriminate against women, are against the spirit of Article 14 of the Constitution.

A notable distinction between pregnancy and parenting rights made by Professor Fredman nips the issue in the bud. She argues that while the former requires benefits solely granted to women, the latter must be equally available to both mothers and fathers. Unless this is achieved, it is difficult to alter the sexual division of labour at home, which also subsequently affects the division of labour at workplace. Special measures that empower (only) women with parenting rights, “run the risk of reinforcing their primary role as childcarers, and therefore perpetuating their disadvantage” rather than transcend it.

Thus, it is argued that protective legislation such as maternal benefits, without an equivalent paternity leave, fails to understand the social context of childbearing in India. In the absence of law enabling any assistance from their partners, it causes women to disproportionately contribute to childcare. It suggests that besides childbirth, even childbearing is a role specific to women and perpetuates the sex stereotype ascribed to the female gender. Pressed with a law which recognises them as the sole benefactors of childbirth, women find themselves at home being the sole caretakers of their children.

This even has implications for workplace equality where prolonged childcare leave makes it difficult for women to resume employment, who nevertheless face a gap in their professional life, something their partners seldom do. An unequal childcare leave policy thus contributes to gender inequality by reiterating gender roles in childcare. On a separate note, this also bears a stark contrast to the Hindu Guardianship Act, where the mother is recognised as a guardian only secondary to the father of the child.

The State stands in the witness box, compelled to revisit the law and answer: Does the Maternity Benefit Act, legislated as a special provision under Article 15(3), truly advance the cause of women? Does the disproportionate burden of childcare on women have deleterious implications for workplace equality and thus gets caught in the net prohibited by Article 14 of the Constitution?

Taking a cue from other jurisdictions

India is not alone in its struggle to achieve equality at home. While many jurisdictions fail to ensure even maternity leave and severely violate the socio-economic rights of women, I only focus on jurisdictions to learn from. For this, Germany provides an excellent example of legislative policy on childcare.

Germany offers paid maternity leave of 6 weeks prior and 8 weeks after childbirth. It further provides for unpaid parental leave that can be availed by either or both parents for up to three years. If both parents are working, the leave may be availed simultaneously or alternately. During this period, the government offers parental allowance to raise the child (Elterngeldstellen). It is significant that the employer cannot terminate the contract of either parent for the period of parental leave and entitles both parents to resume employment at the same position (and working hours) at which they left. The German policy on childcare leave is evidently a case in point for ensuring equal parenting rights.

The decisions of courts in Canada and of the European Court of Human Rights (ECHR) have also made concrete observations in dispelling the role of women as primary child-carers. In Fraser v. Canada (2020), the Canadian Supreme Court set aside a policy on job sharing positions offered by the Canadian Police, which permitted either parent to take up more responsibilities at home, but subsequently disentitled them from pension benefits. The Court found the policy to have a disparate impact on female police officers who predominantly availed the leave and were made ineligible for pension. This was in violation of equal protection of laws under Article 15 of the Canadian Charter, and thus impermissible.

Dealing with a different issue, the ECHR in Gruba & Ors v. Russia (2021) struck down a weak paternity leave policy for policemen in Russia which disentitled fathers from taking leave if maternal leave could be availed by their partners. The State’s justification of paternity leave in undermining the operational effectiveness of the police force was rejected by the Court as unreasonable justification for sex discrimination. Unequal treatment was in violation of Article 14 (right to non-discrimination) and Article 8 (right to family) of the European Convention on Human Rights and was thus impermissible.

With the social implication of questioning the role of women as primary child carers, these decisions pave the way and offer guidance for a more progressive equality law jurisprudence in India.

The legislature must step up

To address gendered childcare in India, the legislature surely has a greater role to play than the judiciary. Moreover, it is difficult to contemplate intervention by the courts to strike down the present law since it would leave a complete vacuum in the area of childcare leave. It is also certainly difficult to raise a challenge to the law on maternity leave itself, which is otherwise constitutionally valid under Article 15(3). Thus, it is only the legislature that is capable of bridging this disparity in childcare leave and reducing the disparate impact caused by the present Central and state legislation.

Gender equality is an issue for fathers as much as it is for mothers. It is the need of the hour for sex discrimination legislation to be studied with this lens, a focus which the legislature has missed for several decades since the Maternity Benefit Act was enacted. While social change can only come with time, the legislature must at least endeavour to enable equal responsibilities in childcare by granting equal parenting rights. It is only when this equality is achieved by the State that gender relations at home will begin to change and gender equality will be achieved in its true sense, as contemplated by the Constitution.