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A Labour of Love: Making the Jurisprudential Case for Paternity Leave in India

- Jwalika Balaji


Introduction


A Wire article asks, “Are we allowing fathers to be equal parents?”[1]


Virat Kohli made headlines for his decision to avail paternity leave in 2021 after the first Test while touring Australia. While this decision may seem like a choice to many, the BCCI has been accused of refusing other cricketers paternity leave previously.[2] And this is precisely the issue with the Indian law. Can, for example, a blue-collar worker who constantly moves in and out of private, contractual employment, execute the same decision to make time for his child? Do laws and state policies generate spaces for caring masculinities, which can nurture and undertake the labour of caregiving for children?


The academic literature relating to paternity leave in India is firstly, minimal, and secondly, does not demonstrate a compelling and coherent feminist philosophical or legal argument for the same. I seek to understand and articulate the ways in which we can create and hold spaces for generative masculinities that reject domination and instead, practice caregiving.[3] Currently, the entire burden of childcare rests upon women, and this burden is perpetuated not just ideologically, but materially through state laws and policies as well. I put forward a moral and legal argument for the Indian state to provide paternity leave as a form of gender equity in the division of labour, from the perspective of ethics of care.

I do not examine the practical considerations or the various aspects of actually designing the policy of paternity leave, as they can vary, based on multiple factors in different spaces.[4] I, also, do not engage with the aspect of the economic burden on the state and the employers when it comes to any social security measure, although it is very important to address this concern if one were to legitimately make a claim for such measures.[5] My paper is restricted to moral, jurisprudential, and legal conceptions of paternity leave as a responsibility that ought to be recognized in India.


In the first section, I examine the various models of ordering the welfare state to address work and care. I illustratively demonstrate how Indian laws and policies further the male breadwinner model, which has the dual issues of disenfranchising women as citizens as well as furthering only hegemonic ideas of masculinity. I explore the Universal Caregiver model proposed by Nancy Fraser, and root paternity leave in the same. In the second section, I put into conversation men and their masculinities with the complexities of caregiving. I draw on a model of caring masculinities that can effectively take up caregiving responsibilities. I use the conversations accompanying the Paternity Bill, 2017 in India to demonstrate how the various models and theories find practical application. In the final section, I flesh out the moral underpinnings of state support of paternity leave. I locate the same legally in articles of the Constitution as well as judgements which theorize on childcare leave. I specifically read Rama Pandey v Union of India to make a case for how paternity leave could similarly be situated within Indian jurisprudence. A short conclusion follows.


As a final note, I use men and women loosely in this paper as placeholders here to represent those who do undertake productive work versus those who undertake reproductive work. This power dynamic can be replicated in other relations as well: the upper-caste woman and the lower-caste ayah servant; the upper-class man and his (dependent) mother; the lower-class parents and their older daughter, wherein within these relations, there is clearly one class of persons who engages in ‘productive’ employment and another class of persons on whom the caregiving burden is thrust.


A. The Universal Caregiver Model: Equitable Foundations for a Welfare State


In her early writing, Nancy Fraser reviews the two predominant welfare state models around which gender and labour are considered to be ordered ‘equitably’.[6]


1. Universal Breadwinner Model

The first is the universal breadwinner model, which argues that all individuals are capable of entering the market and engaging in ‘productive labour’.[7] This model seeks to create conditions such that women can also enter the market and occupy the position of breadwinner by focusing on ‘productive labour’.[8] Fraser also argues that the logical extension of encouraging all individuals to be market citizens is that, then, the caregiving burden must also shift to the market and the state.[9] What this means is that caregiving will become a paid job performed by employees. In the context of the United States, however, Fraser evaluates how paid caregivers are currently extremely poorly compensated and that paid caregiving is gendered and racialized.[10] For this model to work, therefore, the market has to alter itself and make caregiving a job that pays as well as the ‘productive’ employment that all citizens will have access to.


The critique of this model is that it valorises the ideals of the market. The model engenders androcentrism since it values the masculine ideals of autonomy, self-sufficiency, ‘productivity’, liberty, and competitiveness which can be seen in the market.[11] The current global eco-political order of neoliberalism is founded on the values of liberty and competition. Liberty is conceptualized in the sense of the economic unit being an autonomous, independent, self-sufficient, rational man.[12] This logic is extended to the market as a whole; values of limited government interference, entrepreneurialism, privatisation, and minimal regulation come together to further this goal and the value of liberty. Competition then becomes liberty’s rational counterpart wherein every man, firm and market compete for positions, products, and profits.


While there is value in the state and the market stepping up to compensate caregivers, this model doesn’t account for two situations: One, women voluntarily taking a break from the market to engage in caregiving, and Two, women not being allowed by their families to enter the market at all, due to various reasons. The outcome of the model is that such women and their existence could be demarginalized. This is because the model places a premium on productive labour - it is fundamentally premised on viewing and valuing the self through market employment. It assumes that all persons can and should enter the market, and also that the worker-citizen ought to be the unit of society. This essentially gives in to what Gilligan calls the ‘ethic of justice’.[13] There is no focus on maintaining relationships or working together to reproduce shared patterns of being. Moral principles are ‘abstracted out’, and lifestyle is shaped by market values. There is only a focus on production and not reproduction, which essentially is antithetical to feminist ethics and values, as will be explained below. Therefore, such a model is not ideal as we aim to redistribute burdens of caregiving in a way that caregiving as an ethic and as a practice is considered inherently valuable.


2. Caregiver parity model

The second is the caregiver parity model,[14] which operates on the principle of ‘separate but equal’. This model acknowledges and creates conditions in which the caregiving labour of women in the domestic sphere is accounted for and valued on par with the labour of the breadwinner. It aims to make the distinction between ‘productive’ labour and domestic work and the choice of the latter costless.[15] This is seemingly premised on an equitable notion of dignity. This model would retain care work in the home, as private, but aim to support the same with public funds. A huge assumption inherent in this model, however, is similar to the one underlying family wage – that men will be the primary breadwinners, and that women will be the ones engaging in care work.[16]


Fraser argues that this model is better than the universal breadwinner model because it treats caregiving as intrinsically valuable and is accommodative of a lifestyle led by women with caregiving responsibilities.[17] However, the critique of this model is that it retrenches the gendered division of labour.[18] While it appreciates that reproductive labour is indeed labour and that caregiving is generative, it does not divide the burdens any more equally between men and women. It does not demand men to engage in caregiving, thus, reiterating the idea that care work is mainly women’s work.[19]


This model could unfortunately entrench the male breadwinner/female homemaker model that became a post-war construct in most countries.[20] Even in India, there is a notable absence of men undertaking domestic work and childcare at home.[21] Even worse, the State undertakes a channelling function in India wherein laws, policies, and state institutions are systematically structured to further the gendered division of labour.[22] Men and fathers are enabled to have rights over children and property, whereas they impose all the burdens and responsibilities of domestic work, caregiving, and childrearing on women.[23] This can commonly be seen in laws and judgements relating to guardianship and custody in India.

I will demonstrate this proposition by examining three laws and policies in India regarding childcare.


First, Section 6 of the Hindu Minority and Guardianship Act, 1956 states that the natural guardians of a Hindu minor’s person and property in the case of an unmarried boy or girl, are the father, and after him, the mother.[24] The proviso, on the other hand, states that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. It is well-known in family law that guardianship indicates rights, and custody indicates responsibilities.


Second, the Maternity Benefit Act allows a child-bearing mother to take 26 weeks of maternity leave and allows adopting and commissioning mothers (through surrogacy) to take 12 weeks of leave after the child is handed over to them.[25] The scope of maternity leave is quite extensive – it applies to factories, mines, plantations, shops, establishments, notified establishments, etc. On the other hand, paternity leave as a concept is very rare in Indian law. Rule 43-A of the Central Civil Services Leave Rules is a lone provision which provides for just 15 days of paternity leave to men, which can be taken between 15 days preceding the childbirth and 6 months after the delivery of the child.[26] The reasoning for the same is discussed below in depth. This disparity in whom paternity leave applies to, and the quantum of the same clearly indicates that the State does not conceive of both men and women engaging in caregiving.


Third, the CCS Leave Amendment Rules 2009 provided for Rule 43-C, which governs Child Care Leave. It allows a woman government servant to take 730 days (two years) of leave during her entire service “for taking care of up to two children whether for rearing or to look after any of their needs like examination, sickness, etc”. The gendered provision of the same is only reinforced by a notification of the Ministry of Personnel dated 11.12.2018.[27] It amended Rule 43-C to provide even for single male government “unmarried or widower or divorcee” employees to avail of the child-care leave. This clearly indicates that the state relegates all the labour related to caregiving to women and only constructs male employees as caregivers in the absence of women in their lives.


Rajya Sabha MP Rajeev Satav introduced a Paternity Benefit Bill in 2017 as a private bill. He recounted the motivation behind the same in an interview, “It was my wife, Dr Pradnya, and our families who took on the onus of taking care of our infants. It struck me then how fathers in India aren’t expected to lend an equal hand when it comes to infant care and this fact always lingered with me”.[28] This further demonstrates the channelling function and assumptions implicit in society regarding caregiving.[29] Therefore, it might be dangerous to advocate for the Caregiver Parity model in such a heavily gendered society.[30] While I agree that domestic and care work should be accounted for as economic work and supported by the state, this specific formulation of gender equality might not be suitable for such post-colonial, heavily gendered societies.


Going back to Fraser, we can see the pitfalls of both the Universal Breadwinner and Caregiver Parity models. Fraser then proposes an alternative – the ‘Universal Caregiver Model’.


3. Universal Caregiver Model

Fraser imagines a third, deconstructive vision of a model for a welfare state, albeit post-industrialist. The primary assumption of this model is that all activities must be de-gendered. Caregiving must move from being seen as women’s work to work that can be, and should be, performed by all persons. This model seeks to sever the clean dichotomy between public, ‘productive’ labour and private, caregiving responsibilities. It demands that men engage in domestic labour and childcare, thus overturning the concept of gendered division of labour. This model responds to and is reflective of the ‘ethic of care’ that Gilligan proposes,

“A progressively more adequate understanding of the psychology of human relationships, an increasing differentiation of self and other and a growing comprehension of the dynamics of social interaction informs the development of an ethic of care. This ethic, which reflects a cumulative knowledge of human relationships, evolves around a central insight, that self and other are interdependent.”[31]


Fraser premises this model on the principle of gender equality and caregiving responsibility that attaches to everyone.[32] This Model takes into account the form of citizenship that women presently have access to. Selma Sevenhuijsen argues that care is a central aspect of citizenship. Everyone needs care, and everyone is capable of giving care as citizens. It is the foundation of our democracy – a state that cares for its citizens, and citizens that care for each other, thus making possible social reproduction and the subsequent exercise of our rights. It is the only form of conceiving the citizen in a way that can truly account for women, as most of them are rendered de facto caregivers within society.


This model presumes that everyone is a caregiver and could be a worker. Fraser writes, “imagine a social world in which citizens’ lives integrate wage earning, caregiving, community activism, political participation, and involvement in the associational life of civic society”.[33] This would account for co-primary caregivers to children and other dependent persons, adequate insurance and social security to carry out caregiving exclusively, flexible work conditions, and state support for gender equality both, at home and in the workplace. Fraser admits that this model comes with a radical vision of gender equality, and requires restructuring of the institution of gender itself.[34] However, I argue that in the absence of a total overhaul of the institution of gender, we can locate paternity leave as one that furthers such a model in India. I argue that we can create a space for caring masculinities and hold on to that space in this model – with the hope that the introduction of paternity leave will generate state support for understanding and integrating the idea of the universal caregiver into citizenship; and that it will generate ideological discourse on the necessity of de-construction of gender roles.


B. Can men and their masculinities be put in conversation with the complexities of caregiving?


To create a space for caring masculinities, we need to first understand what caring entails. Along with that, we need to interrogate how these aspects of care are gendered in specific ways, entailing specific bodily responsibilities to women while allowing men to still claim the tag of ‘caring’ without the same.


1. Masculine caring – protecting and providing

Joan Tronto and Bernice Fisher outline four phases of care in their early work – caring about, taking care of, caregiving, and care-receiving.[35] ‘Caring about’ means being attentive to and aware of the needs of those receiving care. It involves an active and alert figure, who can also decide who needs care and what kind of care is required. ‘Taking care of’ or ‘caring for’ is taking up responsibility for fulfilling the needs that have been identified. ‘Caregiving’ is the actual practice of performing the labour of caring. It involves the knowledge of how to meet needs and the material actions of actually meeting the same. ‘Care-receiving’ involves the response of the person who has received the care, which completes the loop.


However, Joan Tronto complicates the discussion on the gendered nature of caregiving by clarifying that caring is not entirely diametrically opposed to masculine values and practices. Instead, masculine caring is coded in such a way that it complements the current gendered division of labour.[36] Tronto argues that men practice caring by protecting and providing.[37] For example, in the current male breadwinner model that exists (even in India), men are seen as providers, producers, and protectors.[38] Men are said to be ‘good’ fathers and care about their families by economically providing for them.[39] This hegemonic idea of masculinity both establishes their place in society as citizens and deems them as good carers.[40] Diemut Bubeck writes, “men are caring husbands and fathers if they are reliable breadwinners, but they do not have to change their children’s nappies or sing them lullabies”.[41] However, apart from the ideological reason that masculinities are constructed in a specific manner and prohibit the undertaking of ‘feminine activities’, there is very real concern that one of Tronto’s important elements of care[42] – competence – would not come from men. Maneka Gandhi, who was instrumental in getting the Maternity Benefit (Amendment) Act, 2017 passed, remarked just a year prior, that “Men will use paternity leave like a holiday”.[43]


It is important for feminists who are committed to the project of gender equality (both within and outside the home) to put men and their masculinities in conversation with the complexities of caregiving as well as the theoretical concept of the ethics of care. The dismantling of (hetero)patriarchal masculinity cannot arise in the neoliberal legal project of equality for all. It has to be embedded in the feminist project of the equal division of caregiving labour.


Therefore, perhaps the true disloyalty to (hetero)patriarchal masculinity and neoliberalism is the challenge to the ethics of justice through the universal caregiver model. To expand further on the universal caregiver model, Fineman and Herring can be made to speak with Nancy Fraser here. As Fraser outlines the commitment to seeing people as both, carers and workers, this is only possible if we locate the values and assumptions underlying the universal caregiver model in the broader literature on the ethics of care. Scholars Martha Fineman and Jonathan Herring start with a very simple proposition – that we are all vulnerable, and interconnected – challenging the values of autonomy and self-sufficiency.[44] Fineman locates vulnerability in the very existence of the human condition – biological dependency as children, perhaps as senior citizens, and as people prone to illnesses.[45] These do not depend on any identity markers such as class, caste, or gender (though they might be exacerbated by these and other socio-economic conditions surrounding such identity markers). To be human is to be vulnerable and therefore, to be dependent.

The flipside of vulnerability and dependency is relationality. Herring argues that it is not possible to be independent – this is merely a façade.[46] If vulnerability and dependency exist as a matter of universal fact, so does relationality. Relationality simply means that all humans are interconnected.[47] We are a-priori bound to and dependent on each other. This is not just found in the aspect of caregiving within the home. This can very well be located within market transactions. Eva Kittay rebuts the market logic of independence. She writes,

“all employment involves some dependency. The provider is dependent on an employer and on an economy whose skills, services, or products are marketable. The waged worker is him/herself in nested dependencies - dependent on an employer, who is dependent on a market and on a particular configuration of economic structures and forces, such as interest rates, global competition, etc.”[48]


According to her, the real difference between a market worker and a caregiver is not about self-sufficiency but about which kind of labour results in grave vulnerabilities.[49] This reasoning could be said to provide the ontological basis for the universal caregiver model.


2. Paternity leave in India – a responsibility and a feminist ethic of care

When I conceptualise paternity leave in India, it is this logic of vulnerability and relationality that I seek to draw on. The logical corollary of being interconnected and experiencing dependency means that we need to start thinking with the language of responsibility and not rights. Tronto distinguishes between obligation-based and responsibility-based ethics.[50] She argues that obligation-based ethics involves a two-step process: (i) Asking “what duty do I owe to help the person in need”? (ii) Actually helping them. On the other hand, responsibility-based ethics recognizes that we are all vulnerable, interdependent and interconnected. Hence, directly, it enables us to ask, “how can I help”?


The idea of paternity leave challenges the assumption of masculine caring as protecting and providing. It assumes as well as thrusts upon fathers the responsibility of taking care of, and caregiving as well – the second and third stages in Tronto’s phases of care. This logic can be seen in various judgements in India dealing with paternity leave.


Rule 43-A of the Central Civil Services Leave Rules provides for 15 days of paternity leave to men, which can be taken between 15 days preceding childbirth and 6 months after the delivery of the child. In various judgements, the reasoning given by the Court to justify the 15 days of paternity leave is very illuminating.[51] In N Siva Krishna v National Board of Examination, the Delhi High Court opined that “paternity leave is … to enable a father to take care of mother and child. Thus, in one sense, even paternity leave can be stated to in aid of the woman/child involved. (emphasis mine)”.[52] The same reasoning was adopted in Dr Deepa Sharma v State of Uttarakhand while commenting on the scheme of childcare leave.[53] The Court ultimately directed the Government of Uttarakhand to “grant 15 days' paternity leave to a male employee appointed on regular basis, contractual basis, ad hoc/tenure or temporary basis to enable the father to look after the mother and child.” In Govinda Verma v State of Rajasthan,[54] the issue was about whether a prisoner could merit ‘paternity parole’. The Court ruled in his favour, holding that


“A newborn child needs the warmth of the mother and also the care of his father. A man is not complete until he has seen the baby he has made. It, therefore, calls for a humanitarian intervention to release a person on parole so that he can establish that emotional and physical connect with his child and the mother creating an edifice of family.”[55]


The Court awarded the prisoner 15 days of paternity parole. The CCS Leave Amendment Rules 2009 provided for Rule 43-AA which extended the same 15 days of paternity leave even to adopted children.


It is interesting to note that the Paternity Benefit Bill 2017, a private member bill introduced by MP Rajeev Satav,[56] (which mirrors a lot of the provisions of the Maternity Benefit Act) emerged out of this concept of responsibility. In public, on multiple occasions, MP Rajeev Satav has spoken about the aims behind this bill – “Childcare is the joint responsibility of both parents. They must devote time to the newborn to ensure its proper well-being”.[57] Noting the joint responsibility, and framing paternity leave not as a right but as a responsibility falls in line with the theories discussed in this paper so far. A public tweet of MP Satav on Twitter also states about the bill: “a step that'll have positive effects for gender equality at home & work and will help shift perceptions of parenting roles & prevailing stereotypes.”[58] When reading the tweet, the public statement, and the bill (which resembles the Maternity Benefit Act) together, I locate this project as one that puts into conversation men and their masculinities with the ethics of care. This specific construction of paternity leave represents the ability of men to connect with those around them and reject dominant and hegemonic conceptions of masculinity. It allows and nudges them to take active responsibility in childcare and do more than just ‘take care of’ their wife and children post-childbirth.[59]


Care feminists not only stop at the project of theorizing ethics of care, but they also tangibly articulate the specific responsibility of the state to support caregiving. In this case, that could be through various initiatives – the passing of a comprehensive law on paternity leave, social insurance for caregiving if both parents go on childcare leave, expanded coverage of health insurance for the child, etc. While these practical aspects have numerous models and can be debated extensively, the primary question that I still have to address is – can a strong legal argument be made for introducing paternity leave in India?


C. Locating Paternity Leave within the Law: Reading Generatively


The Universal Caregiver model envisions a change in the state laws and policies as well as in the institution of gender. Although creating change in the social institution of gender is a project that operates at multiple levels and in multiple arenas, changes in laws and state policies can alter the orientation of the law’s channelling function. The state can signal through paternity leave that men are and can be competent and caring and required to engage in the responsibility of childcare. In this section, using the jurisprudence from judgements on maternity leave, I will demonstrate how the principles culled out can be used to argue for paternity leave as well.


The aims and objectives of the Maternity Benefit Act (‘MBA’) state that the Act is to regulate the employment of women in establishments before and after childbirth and to provide for maternity benefits.[60] Some judgements iterate the fact that the MBA approaches maternity benefit only from the perspective of the health of the mother.


In K. Kalaiselvi v Chennai Port Trust,[61] the issue before the Madras High Court was whether the maternity leave under the Madras Port Trust (Leave) Regulations, 1987 could be extended to surrogate mothers. Rule 3-A of the Regulations provides for up to a year of maternity leave for the adoptive mother. The Court held that the reasoning behind this leave was for a bond to develop between the mother and the child. This, in essence, provides for childcare leave and not exactly ‘maternity’ leave per se. The Court linked this with Rule 18(D) of the All India Services (Leave) Rules 1955, which provides for childcare leave of 730 days taken before the child turns 18 years of age. The Court also distinguished the Port Trust Regulations and the All India Services Rules from the MBA. It stated that the MBA was mother-centric and only dealt with actual childbirth. It stated that the MBA did not provide childcare leave in the post-natal period, since it only gave leave of six weeks to the mother. Ultimately, the Madras High Court upheld the grant of leave to surrogate mothers as well. It reasoned that Rule 3-A should not be read in a discriminatory manner, and since its object was to promote parent-child bonding, the leave should be extended to surrogate mothers as well.


A similar judgement has been passed by the Kerala High Court in the case of P. Geetha v Kerala Livestock Development Board.[62] The issue before the Kerala High Court was whether the commissioning mother, who had a baby through surrogacy, could be entitled to claim maternity leave under the Kerala Livestock Development Board Limited Staff Rules & Regulations, 1993. The leave here clearly was on similar lines as the MBA. Rule 50 provides for up to 90 days of maternity leave. It also states that maternity leave may be continued if required for the medical attention of the mother or the child. The Staff Rules did not have any provision for maternity leave for non-birth mothers, unlike the Port Trust Regulations in Kalaiselvi. The Kerala High Court acknowledged that due to a lack of provisions providing for childcare leave, it could not equate either the All India Services Rules or the Port Trust Regulations to the Staff Rules in this case. It could, therefore, on a plain reading of the Staff Rules, not extend maternity benefits to the surrogate mother. However, the Court made a statement that there ought not to be discrimination against women who have become mothers through surrogacy. It held that if any child-specific statutory benefits were to be distributed, they should be equally applicable to the petitioner, i.e. the commissioning mother. The Court also made comments on the MBA, noting that the MBA focussed only on conception, gestation, and delivery, intending to protect the health of the pregnant woman and the in-utero child. It stated that the MBA could not be said to account for child care because a leave of merely six weeks and paltry compensation in no way accounts for the same.


However, what both these judgements indicate is that there are broadly two reasons for the state to give maternity leave: one, to protect the health of the mother and the child, and/or two, to account for child care. This was explicitly recognized in Rama Pandey v Union of India, an extremely important and progressive judgement.[63] In this case, the issue before the Delhi High Court was whether the commissioning mother would be eligible for maternity leave under the Central Civil Service (‘CCS’) (Leave) Rules, 1972. The petitioner was the genetic mother of twins, who were carried to term by a surrogate mother. She applied for maternity leave and childcare leave under the Central Civil Service (Leave) Rules, 1972. Rule 43 (as it stood then) provided for 135 days of maternity leave for child-bearing mothers, and Rule 43-B provided for 60 days of maternity leave for adoptive mothers. In this case, the petitioner was granted childcare leave but was denied maternity leave under Rule 43 of the CCS Rules, after which she approached the High Court.


The High Court recognized that the CCS Rules, as they stood then, did not provide for leave for commissioning parents. However, it applied the principle of dynamic statutory interpretation or updating of construction principle to argue that the regulations must be read in light of technological advancements relating to achieving and bringing pregnancies to term. The Court recognized that Rule 43 implicitly recognizes two principal reasons for maternity leave: one, to account for biological changes during and after pregnancy, and two, to account for the multiple childcare burdens that follow. The Court recognized that the commissioning mother would need to bond with the child, breastfeed if required, and become the principal caregiver of the child.


The court rooted maternity leave in the concept of the best interest of the child and the subsequent responsibility that parents owe to the child, rather than conceptualising the same as the right of the mother. The Court holds, “Non-provision of leave to a commissioning mother, who is an employee, would, to my mind, be in derogation of the stated Directive Principles of State Policy [Articles 39(f) and 45] as contained in the Constitution.”[64] Article 39(f) directs the State to create opportunities and facilities for children to develop in a healthy manner with freedom and dignity. Article 45 relates to the duty of the state to provide early childhood care and education to children below the age of 6 years. The High Court ultimately held that pre-natal maternity leave must be allowed for commissioning mothers as well.


The Supreme Court, in the recent judgement of Deepika Singh v Central Administrative Tribunal and Others,[65] recognized that there is a duty on the State to support care work by providing for maternity, paternity, and childcare leave. The issue, in this case, was whether the appellant, a woman, could claim maternity leave for her third living child under Rule 43 of the Central Civil Service (Leave) Rules, 1972, the appellant, a woman, could claim maternity leave for her third living child. This clearly goes against Rule 43(1) which explicitly states that a woman can claim maternity leave only if she has less than two surviving children. In this case, however, the Supreme Court adopted a purposive construction of Rule 43(1), drawing on jurisprudence from the MBA. It recognized that the spirit of the MBA is to ensure that the delivery of a child does not hinder the woman from receiving wages from her workplace. The Court brought up the gendered division of labour which disproportionately imposed the caregiving burden on women. The Court recognized that childcare constituted time spent by women in unpaid work. They made an important observation that “the support of care work through benefits such as maternity leave, paternity leave, or childcare leave (availed by both parents) by the state and other employers is essential.”[66] They upheld the appellant’s right to maternity leave for her third child as well, choosing the interpretation of Rule 43 which would give effect to the purpose of the CCS Rules.


Summarizing these judgements, I submit that there are two strong reasons for the state to provide for paternity leave:


1. Paternity leave as rooted in childcare

The current jurisprudence on maternity leave in India recognizes that maternity leave can be provided for childcare. Some of our leave rules explicitly account for adoptive mothers and surrogate mothers to avail maternity leave. The CCS Rules provide for paternity leave as well, although it comes with the condition of ‘when [the male employee’s] wife is confined on account of childbirth’. Recently, Rule 43-C of the CC Rules was amended to allow for unmarried, widowed, and divorced fathers to avail of child-care leave as well.[67]

If leave is rooted in assuming childcare responsibilities for everyone, there is no reason to not allow fathers to avail of such leave to care for their children. Clearly, the state does not think that fathers are incompetent to care for their children, as is evidenced by the (limited) provision of paternity leave in the Central Government’s own Civil Service Rules. The judgements in Section II also demonstrated that paternity leave is granted for the father to take care of the mother and the child. However, the state does seem to believe that it is a responsibility that need not be shouldered by fathers. It is this assumption that should change, and the state should instead be guided by the values present in the Universal caregiver model. The starting point should be that all parents are competent at childcare, and ought to be involved caregivers. Therefore, to have quality childcare as well as to allow the father to bond with the child and help in childcare, the state should provide for paternity leave in India and existing jurisprudence supports this reasoning as well.


2. Paternity leave as rooted in gender equality

The above-mentioned Supreme Court Judgement clearly reiterates the duty of the state to support care work and redistribute the responsibilities of childcare, noting the current gendered division of labour. The state does have a duty to ensure gender equality (Articles 14 and 15) as well as early childhood care and education for children below 6 years, (Article 45 of the Constitution). A joint reading of these articles would mean that the state must take steps to ensure the removal of barriers to achieving true equality for women.[68]

The unequal childcare burden that falls on women combined with an implicit devaluation of the ethic of care, or worse, an attitude that childcare is only the responsibility of women are both structural, legal, and attitudinal problems that exist today. The state has to redistribute caregiving burdens equally, to ensure that caregiving is valued and is recognized as the responsibility of all parents. This has to be done to achieve a more equal society. The Supreme Court judgement recognized that the MBA’s aim is to ensure that women can both be mothers and workers if they so desire.[69] This aim can be supported not only by having special provisions like maternity leave but should include the idea that fathers must help out equally with childcare as well. Otherwise, it would result in a ‘double burden’ for women where they are expected to look after the children, while simultaneously carrying out full-time employment as well.[70] Although relaxations at work are provided through the MBA, women’s ‘double burden’ will not decrease unless they have equal support and an equal division of labour in fulfilling childcare responsibilities with their partners, the fathers.

Therefore, paternity leave must be granted by the state to fulfil its constitutional mandate as well as its moral commitment to gender equality. The state must view everyone as a caregiver and order its laws accordingly. As Sara Ruddick writes, “the most revolutionary change we can make in the institution of motherhood is to include men in every aspect of childcare”. [71]

Conclusion


In this paper, I have discussed the three welfare state models discussed by Fraser. I have paid particular attention to how the Indian state furthers the male breadwinner/female homemaker model. I have used the Universal Caregiver model proposed by Fraser to make an argument for paternity leave in India. I have set out the moral and legal justifications for paternity leave in India. The moral justification for paternity leave can be found in theories of universal vulnerability, dependence, and relationality. This casts a responsibility on every one to engage in caretaking. The legal argument for paternity leave can be located in Indian laws using Constitutional Articles and existing judgements on childcare leave. The state has the duty to support the equal distribution of childcare responsibilities since it is constitutionally mandated to operate in the best interests of the child and work towards gender equality.


The International Labour Organization in its report ‘Maternity and Paternity at work’ lists out ‘key messages’ at the beginning of each section of the analysis.[72] In the section on paternity leave, the key messages are that


“fathers’ leave, take-up of family responsibilities and early interaction with their children are directly related to successful child development. Recognition of men’s right to parenthood and their responsibility to share unpaid care and household work will help to break down traditional societal attitudes, resulting in greater equality for men and women at home and work.”


This sentiment was finally echoed by Maneka Gandhi as well, who backtracked on her initial comment that paternity leave would be used by men as a holiday. She remarked, “Ideally raising a child is the responsibility of both parents”.[73] Keeping such ideals in mind when drafting our state policies would be a good start to our commitment to gender equality and quality childcare, through the creation of caring masculine spaces.

[1] Rucha Satoor, ‘Are we allowing fathers to be equal parents?’ (The Wire, 8 December 2019) <https://thewire.in/rights/are-we-allowing-fathers-to-be-equal-parents> accessed 12 September 2022. [2] Yashee, ‘Explained: What row over Virat Kohli’s paternity leave says about labour laws, gender roles in India?’ (Indian Express 14 January 2021) <https://indianexpress.com/article/explained/virat-kohlis-paternity-leave-says-labour-laws-sunil-gavaskar-7143725/> accessed 12 September 2022. [3] I draw from Jill Rubery, ‘Regulating for Gender Equality: A Policy Framework to Support the Universal Caregiver Vision’ (2015) 22(4) Social Politics 513 who has undertaken a similar approach to her paper. [4] For a comprehensive article that analyses the different aspects and elements of paternity leave policies, see Peter Moss, ‘Parental leave and beyond: Some reflections on 30 years of international networking’ (2018) 27 Revista Española de Sociología 1. Also see Ifat Matzner-Heruti, 'All You Need Is Leave: Rethinking the Concept of Paternity Leave' (2015) 21 Cardozo Journal of Law & Gender 475. [5] For an economic analysis of the burden of paternity leave in the labour market in India, see Ananya Dhanuka and Kashish Banthia, ‘Paternity Benefit Leaves in India: Need, Cost and Gender Reform’ (2021) 1(4) International Journal of Policy Sciences and Law 2344. [6] Nancy Fraser, ‘After the Family Wage: Gender Equity and the Welfare State’ (1994) 22(4) Political Theory 591; Yueh-Ching Chou & others, ‘Universal Breadwinner Versus Universal Caregiver Model: Fathers’ Involvement in Caregiving and Well-Being of Mothers of Offspring with Intellectual Disabilities’ (2016) 29 Journal of Applied Research in Intellectual Disabilities 34; Mandy Long, ‘Gender Justice and Fraser’s Universal Caregiver’ (2016) (Thesis, Georgia State University) <https://scholarworks.gsu.edu/philosophy_theses/183 accessed 9 December 2021. [7] ibid. [8] ibid. [9] Fraser (n 6). [10] ibid. [11] Linda McDowell, ‘Work, workfare, work/life balance and an ethic of care’ (2004) 28(2) Progress in Human Geography 145. [12] Katrine Marcal, Who Cooked Adam Smith’s dinner? (Portobello 2015). [13] Steven D. Edwards, ‘Three versions of an ethics of care’ (2009) 10 Nursing Philosophy 231. [14] Fraser (n 6). [15] ibid. [16] ibid. [17] Fraser (n 6). [18] Rubery (n 3); Jennifer E. Karr, 'Where's My Dad: A Feminist Approach to Incentivized Paternity Leave' (2017) 28 Hastings Women's Law Journal 225; Sanchari Ghosh, ‘Maternity Leave in India - Past Present and Future’ (2018 & 2019) 7&8(1) IIS Univ J S SC 35. [19] ibid. [20] Shruti Appalla and Soni Pellissery, ‘Recounting Major State Policies that Promote the Male Breadwinner Model’ in Moly Kuruvilla and Irene George (eds), Handbook of Research on New Dimensions of Gender Mainstreaming and Women Empowerment (IGI Global 2020) 221; Sridhar and Myer (n 6). To understand how the male breadwinner policy has generally been constructed in countries, see Julia Brannen & Others, Working and Caring Over the Twentieth Century (Palgrave Macmillan 2004). [21] Soutik Biswas, ‘How India calculates the value of women's housework’ (BBC, 24 January 2021) < https://www.bbc.com/news/world-asia-india-55762123> accessed 9 December 2021. [22] This division of labour can be traced back to colonial times. It was also heavily re-emphasized in the nationalist movement – see Partha Chatterjee, ‘Colonialism, Nationalism and Colonised Women’ (1989) 16(4) American Ethnologist 622. For a modern study on the division of labour at home, see Neetha N, ‘The Social Organization of Care Work in India: Challenges and alternative strategies’ (2010) 53(3) Development 362. For an intersectional perspective on the gendered division of labour that takes into account caste and class, see Meena Gopal, ‘Ruptures and Reproduction in Caste/Gender/Labour’ (2013) 48(18) Economic & Political Weekly 91. [23] Asha Bajpai, ‘Custody and Guardianship of Children in India’ (2005) 39(2) Family Law Quarterly 441. [24]Githa Hariharan v RBI (1999) AIR 2 SCC 228 clarified that ‘and after him’ indicates “the meaning thereto as `in the absence of `- be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise”. This still does not put the mother on the same footing. [25] Maternity Benefit Act 1961, s 5. [26] Central Civil Service Leave Rules, Rule 43A. [27] Office Memorandum No. 11020/2017-Estt-L, ‘Amendment in the CCS (Leave) Rules, 1972 consequent upon the implementation of the recommendations of 7th CPC’ (Ministry of Personnel PG and Pensions, 30 August 2019) < https://dopt.gov.in/sites/default/files/CCSAMENDMENTRULES.PDF> accessed 9 December 2021. [28] Rucha Satoor, ‘Are We Allowing Fathers to Be Equal Parents?’ The Wire (8 December 2019) <https://thewire.in/rights/are-we-allowing-fathers-to-be-equal-parents> accessed 9 December 2021. [29] Iris Marion Young, ‘Responsibility and global justice: a social connection model’ (2006) Social Philosophy & Policy Foundation 102; The channelling function means that the law organizes societies, institutions and benefits to nudge people towards a specific outcome. [30] See Kimberly Morgan & Kathrin Zippel, ‘Paid to Care: The Origins and Effects of Care Leave Policies in Western Europe’ (2003) Social Politics 49. They reach a similar conclusion on the dangers of extensive childcare leave without reforming the division of labour at home. [31] Carol Gilligan, In a Different Voice (Harvard University Press 2016). [32] Fraser (n 6); Long (n 6). [33] Linda McDowell, ‘Love, Money and gender divisions of labour: Some critical reflections on welfare-to-work policies in the UK’ (2005) 5 Journal of Economic Geography 365. [34] Fraser (n 6). [35] Joan Tronto, ‘An Ethic of Care’ (1998) 22(3) Generations: Journal of the American Society on Aging 15; Ana Jordan, ‘Masculinizing care? Gender, Ethics of Care, and Fathers’ Rights Groups’ (2018) 23(1) Men and Masculinities 1. [36] ibid (Jordan). [37] Joan Tronto, Caring Democracies (New York University Press 2013). [38] ‘Men in Families and Family Policy in a Changing World’ (Department of Economic and Social Affairs United Nations, 2011) <https://www.un.org/esa/socdev/family/docs/men-in-families.pdf> accessed 12 September 2022. The UN report highlights how men in India feel ashamed (and I read, emasculated) if they are unable to provide for their families. This highlights how the gendered division of labour codes protecting and providing as a masculine form of caring. [39] Joan Tronto (n 37); ibid. [40] Jordan (n 35). Jordan argues that men are seen as good carers, and seem to fulfil the first and second phases of care simply by providing and protecting for their families. [41] Diemut Bubeck, Care, Gender, and Justice (Oxford University Press 1995). [42] Tronto also theorizes on the elements of care: attentiveness, responsibility, competence and responsiveness. See Edwards (n 13). [43] ET Online, ‘Men will use paternity leave like a holiday: Maneka Gandhi’ (Economic Times 24 August 2016) <https://economictimes.indiatimes.com/news/politics-and-nation/men-will-use-paternity-leave-like-a-holiday-maneka-gandhi/articleshow/53842504.cms?from=mdr> accessed 9 December 2021. [44] Martha Fineman, ‘Cracking the Foundational Myths: Independence, Autonomy and Self-Sufficiency’ (2000) 8(13) Journal of Gender, Social Policy and the Law 13; Jonathan Herring, Law and the Relational Self (Chapter 3, Cambridge University Press 2019). [45] Fineman (n 44). [46] Herring (n 44). [47] Herring (n 44). [48] Eva Kittay, ‘Taking Dependency Seriously: The Family and Medical Leave Act Considered in Light of the Social Organization of Dependency Work and Gender Equality’ (1995) 10(1) Hypatia 8. [49] Kittay (n 48). [50] Edwards (n 13). [51]N Siva Krishna v National Board of Examination (2015) SCC OnLine Del 9198; Dr Deepa Sharma v State of Uttarakhand (2016) SCC OnLine Utt 2015. [52]N Siva Krishna (n 51) [13]. [53] 2016 SCC OnLine Utt [12]. [54] 2020 SCC OnLine Raj 2692. [55]Govinda Verma (n 55) [7]. [56] Pallavi Mahajan, ‘Fathers, Paternity Benefits and Gender Norms’ (SSRN, 2019) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3441024> accessed 9 December 2021. [57] India Today Web Desk, ‘Much anticipated Paternity Benefit Bill to be considered at the next Parliament session in India’ (India Today 20 September 2017) <https://www.indiatoday.in/education-today/gk-current-affairs/story/paternity-benefit-bill-1048602-2017-09-20>accessed 9 December 2021; PTI, ‘New Bill Proposes Paternity Leave Across All Sectors’ (NDTV, 17 September 2017) <https://www.ndtv.com/india-news/paternity-leave-across-all-sectors-proposes-private-members-bill-1751408> accessed 9 December 2021. [58] Rajeev Satav, (Twitter, 17 June 2018) <https://twitter.com/satavrajeev/status/1008381956373921792> accessed 9 December 2021. [59] It is important to The Paternity Benefit Bill was criticized for not being inclusive of fathers in live-in relationships, same-sex relationships and transgender fathers. I do not advocate for such a conception of paternity leave, but have merely used it illustratively to demonstrate how one can put men in conversation with caregiving. [60] Maternity Benefit Act 1961, Aims and Objectives. [61] 2013 SCC OnLine Mad 811. [62] 2015 SCC OnLine Ker 71. [63]Rama Pandey v Union of India (2015) SCC OnLine Del 10484. [64]Rama Pandey (n 64) [20.1]. [65] Civil Appeal No 5308 of 2022 (Arising out of SLP (C) No 7772 of 2021). [66] ibid [24]. [67] Office Memorandum (n 27). [68] The Supreme Court has recognized in its jurisprudence on gender equality that barriers which prevent women from enjoying full and equal citizenship must be removed. It has reiterated this most recently in Colonel Nitisha v Union of India (2021) SCC OnLine SC 261. [69]Deepika Singh (n 66). [70] Monika Banerjee, ‘Women and their Childcare Needs: Assessing Childcare Provisioning in India through a Gendered Lens’ (ISST Working Paper Series - 2, 2020) < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3971580> accessed 12 September 2022. [71]Sara Ruddick, ‘Maternal thinking’ in J. Treblicot (Ed), Mothering: Essays in feminist theory (Rowman and Littlefield 1983) 213. [72] Laura Addati, Naomi Cassirer & Katherine Gilchrist, ‘Maternity and Paternity at Work’ (ILO, 2014) < https://www.ilo.org/global/publications/ilo-bookstore/order-online/books/WCMS_242615/lang--en/index.htm> accessed 9 December 2021. [73] Anindya Banerjee, ‘From 'holiday' to 'ideal': Maneka Gandhi's U-turn on paternity leave’ India Today (26 August 2016) <https://www.indiatoday.in/india/story/maneka-gandhi-paternity-leave-u-turn-holiday-337314-2016-08-26> accessed 9 December 2021.

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