As we all know the fact very well that childbearing is a role-specific to women. It is a boon given by God to them but the law fails to account for child-rearing as an equal responsibility to both the partners. The law tells us that women must contribute disproportionately to childcare. If a choice is to be made between childcare and work, a woman will be placed in a position to make that choice, the outcome is very obvious. The law on Maternity leave and the same on the absence of paternity leave in India gives a different burden on future mothers to act as primary caregivers. The law tells us that women are unequal in their homes.
In her powerful and delegate speech for the initiative “He for She”, UN woman Goodwill Ambassador Emma Watson shed light on the importance of the involvement of men and people of all genders to gain gender equality. With such a worldwide agenda of gender equality, India’s role in allowing equal treatment on the basis of sex and gender has also gained encouragement. Many improvements on abortion law and permanent commission to women in the armed force have been done. This would indeed be a welcome step forward. In spite of that actual issue is: has the state been able to ensure greater involvement of men to make sure the equality of the sexes? Laws that have been taken the shape of protective (or beneficial) legislation have in fact often ignored the social context that enclosed gendered issues.
This has made a special case for childcare leave. The Government of India has enacted the Maternity Benefits Act, 1961 where women are provided certain benefits, perks, provisions, and protections to raise their children; as long as there is no legislation for paternity leave. Being a country like India where family is our first and foremost importance us. It is a complete and utter requirement to provide a reasonable amount of maternity as well as paternity leave. The government has provided only to female employees. It is unfair because parenting is and should be, a task shared equally between the partners and it is the high time the law on paternity leave in India fortifies in place of rejecting this.
The Laws at Present
In the beginning, it is important to throw light on the current laws on maternity, paternity, and childcare leave In India. As per article 42 of the constitution, it is the state’s duty to provide maternal care, the Maternity Benefit Act 1961(amended in 2017) protects the employment of women during the time of their maternity benefits; for example, fully paid absence for 26 weeks from work to take care of her child. This act applies to every establishment, public or private with 50 or more employees. It also provides for other facilities such as a creche facility in or around the establishment. The state government of Haryana, Bihar, and other states have extended maternity leave to a period of 52 weeks. On the other hand, there are no provisions of mandatory paternity leave established in India till now. 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. According to this rule, the government employees provide a paid paternity leave of 15 days before childbirth or up to 6 months from the date of delivery of the child. There are very few private organizations that also provide paid paternity leave, as a matter of their own initiative. Some of those organizations are Infosys it gives 5 days of paternity leave, Facebook offers 17 weeks, Starbucks offers 12 weeks and TCS offers 15 days respectively of paternity leave.
Amazon, in 2015, started offering all fathers and adoptive parents 6 weeks of paid paternity leave. This is a good initiative taken by them. But the Indian law on paternity leave then is not only extremely narrow in terms of the beneficiary class, but also seems to be based on the assumption that taking care of a child is firstly the mother’s duty. According to Central Service Rule, the government employees can also avail an additional paid childcare leave up to two years, till the child reaches the age of 18 but it is provided only to the government female employees.
The proposal to provide this leave to both partners has not yet become productive. The accessibility of sufficient paternity leave would not only help the father to share the bond with his child as much as a mother do but it also increases the possibility that the child would grow up sharing a strong bond with both the partners despite just one. The child would be able to observe the sharing of parental and caregiving responsibilities between the two genders ab initio, rather than boxing women into the role of caregivers and men into the role of bread-earners.
Now it is high time our legislature should make laws regarding paternity leave and end sex discrimination in India. To address the gendered childcare in India the legislature surely has a greater role to play than the judiciary. It is only the legislature that is capable of bridging this dissimilarity in childcare leave and also decreasing this unlike impact caused by the present central and state legislation. Gendered equality is an issue for fathers as well as it is mothers. When parental leave is taken by both men and females for having a child, it is good for all. That is because equality is not only a female issue. It is the need of the hour we require a broad-minded legislature that treats all gender equally.
While social change can only come with times, the legislature must at least aspire to sanction equal responsibilities in childcare by granting equal parenting rights. This equality is achieved only when by the state that gender relations at home will begin to change and then gender equality will be achieved in its true sense.
Author(s) Name: Shweta Kumari (Manikchand Pahade Law College Aurangabad)