Author: Karan Vakil is a Newly graduated 6th generation lawyer practicing in Mumbai.
The Article argues that while increased maternity leave is a step in the right direction, Family leave is the ideal that our legislature and society must aim to reach for a truly inclusive outlook to childcare and family values.
Introduction
Maternity leave in India was until recently governed by Section 5(3) of the Maternity Benefits Act,1961 (the Act). Section 5(3) of the Act was amended in 2017 to raise the maximum period of maternity leave from 12 weeks to 26 weeks. The Act has now been absorbed into Chapter VI of the new Code on Social Security, 2020 (the Code), which has retained the aforesaid 2017 amendment. While India is a global leader in providing maternity leave (in terms of duration), and deserves to be credited as such, it can also be argued that the very concept of maternity leave is flawed in India for being inherently gendered.
“Maternity” leave in India, as the nomenclature itself suggests, is available exclusively to women. It may be noted here that as per Section 43-A of the Central Civil Services Rules, 1972 (the Rules), paternity leave of 15 days is available to a male government employee in certain situations. However, this is a narrow exception and does not interfere with the comment that this short article seeks to make.
“Family leave” is a relatively new concept that gives both parents of the child a cumulative and simultaneous leave period that may be utilized by them in a ratio that they themselves are empowered to deem appropriate within certain limitations. Versions of this are already being practiced in countries such as Sweden, Finland and Iceland. For example, in Iceland, the parents of the child are given 6 months of maternity / paternity leave each, of which 6 weeks are transferable between the parents of the child.
Argument
Studies have shown time and time again that women face discrimination not only when applying for jobs but also when returning to the workplace after pregnancy. This is in part due to employers being apprehensive about women availing their maternity leave and the commercial consequences thereof. Family leave can provide a solution here; employers would now face a situation wherein they cannot predict the extent of family leave availed by an individual, male or female, thereby creating a gender-neutral outlook to hiring and employment.
Studies have also shown that in nations where paternity leave is offered, those who avail of it are extremely small in number. Most fathers, who despite having the right to paternity leave do not avail of it, cite reasons such as fear of being discriminated against professionally, being passed over for pay raises and promotions and even being ridiculed for taking time off. Gender roles are unfortunately still quite cemented in the workplace. One research fellow at the University of Exeter explains how “Women are no longer seen as less competent than men, but women continue to be seen as more communal – warm, nurturing and caring – than men and, in turn, as more suitable for roles that require these attributes such as childcare” and how “men who do take. This is why retaining the existing maternity leave laws and simultaneously creating new paternity leave laws that are applicable to all fathers and not just those who fall under the ambit of the Rules will likely not result in a gender-neutral outlook to childcare. Again, the solution lies in family leave. By imposing a gender-neutral leave period, the understanding of childcare can move away from one that must be entirely dominated by the mother. Simultaneously, the understanding of financial responsibility can move away from one that lies predominantly on the father.
While the Code is firm on the stance that maternity leave is available exclusively to women, making the intent of the Legislature very clear, it is only a matter of time before these laws are reassessed in the name of progress and equality. At this time, it would be fruitful to consider the following case law backed argument. The judgment of the Hon’ble Delhi High Court in Rama Pandey v. Union of India, 2015 can lend support to family leave. In this case, by equating mothers who physically deliver their own children and mothers who choose the route of surrogacy (i.e. mothers who do not physically undergo pregnancy), the Court acknowledges that maternity care involves the physical birth of the child as well as post-natal care, stressing on the importance of the latter. While only the mother can physically deliver the child, post-natal care can be given by both parents. Thus, the role father of the child can be seen as equally important in the post-natal care of the child. Such a shift to the traditional mindset can catalyse a change towards a far more gender-neutral understanding of childcare.
Conclusion
It is ironic that despite the father of the child being the default natural guardian in India under majoritarian Hindu Law (as per Section 6 of the Hindu Minority and Guardianship Act, 1956), the father is relegated to a secondary role in the caregiving of the child. It is simultaneously concerning that the mother is confined to being the primary caregiver of the child despite the fact that over the years, the Government has encouraged Women to join the workforce, even going to the extent of offering reservation etc. Family leave, if legislated, will force a shift towards a far more holistic and modern understanding of childcare.
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