A comparative study on paternity leave: India versus other countries and the need for legislative enactments

Introduction

As India shifts from a joint family structure to a nuclear family, the support system we enjoyed from grandparents is barely available now. Family forms the first and foremost institution through which a child gets introduced to society.

It is their parents who shape their new born child based on which the child learns to differentiate between right and wrong, good and bad etc. Both the parents play a crucial role in such process. Such things need to be inculcated within the child from the earlier stages of life. During this process of preaching, parents face a lot of challenges.

A study on the new mothers of working women indicated that leaving a few privileged women who have family support to take care of their kids, many working women are struggling with simultaneously managing their children and working.

While they struggle to beat gender discrimination and enter the workforce, they choose to take a break from their career and look after their children.

In order to overcome the hardships each parent should get the assistance of his or her life-partner. These form a vital part in the journey of parenthood.

The traditional way of mothers being “caretakers” of the infants and fathers being the sole breadwinners of the family need to be transformed to a situation where the society should realise that both parents are jointly responsible for the rearing of their infants.

The government be duty bounded to create or amend the policies which enables working of above-mentioned transformation.

Paternity leave

Paternity leave refers to the time period when the father of a newborn baby is allowed to be away from work for taking care of the child as well as the mother. In simple words, it is the amount of leave time taken by the father shortly after the birth of his child for taking care of the child as well as the mother.  Such leaves can be paid, unpaid, partly paid, or partly paid with other benefits.

In 1978, the Government of Norway adopted a Gender Equality Act which prohibits gender discrimination in areas of labor, education and health.  This Act led to the policy on childcare and paternity leave. Following Norwegian policies, many countries brought out such a policy to grant paternity leave to their employees who are new fathers.

Some of the countries that allow their employees to take paternity leave are:

1. Lithuania:

The highest paternity leave is allowed to the citizens of this country both parents can take 156 weeks of leave cumulatively.

2. Sweden:

The Swedish government provides its citizens the parental leave of 90 days to each parent.

3. Spain:

Spanish mothers can avail of a time period of 16 weeks which may extend to 20 weeks as a part of maternity leave, whereas fathers are eligible for only 5 weeks of leave.

4. Italy:

According to the laws in Italy, working fathers need to take a compulsory 7 days of paternity leave. the mothers of newborn infants receive 5 months of maternity leave.

5. Canada:

Canadian Government provides 40 weeks of paternal leave out of which only 5 weeks are for fathers, the rest is for maternity leave.

Many companies in the private sector have altered their policies enabling male employees to avail of paternity leave. But the tenure of such leave is left to the independence of the company.

Some of the MNCs having provisions on the same are as follows:

1. Microsoft: 12 weeks
2. Infosys: 5 days
3. Facebook: 17 weeks
4. Starbucks: 12 weeks
5. Deloitte: 16 weeks
6. TCS: 15 days [1]

Maternity leave

More Than 120 countries around the world provide paid maternity leave and health benefits by law to women who become pregnant considering their physiological status and also to take care of the newborn. The span of leave varies across countries based on their own policies.

Maternity leave in India

In India in consonance with Article 42 of the Indian constitution, the Maternity Benefit Act, 1961 was enacted to allow leave to new mothers during the time of pregnancy and after the birth of child.

Article 42 of the Indian constitution states that

“Provision for just and humane conditions of work and maternity relief – the state shall make provision for securing just and humane conditions of work and for maternity relief”[2]

Later various laws such as the Employees State Insurance Act of 1948, the Central Civil Services Rules of 1972, Plantations Labor Act 1951, and the Equal Remuneration Act, 1976 (ERA) was introduced to ensure women participation at workplace and to give her job protection during her maternity period.

The maternity benefit act was subsequently amended in 2017 extending the tenure of leave to 26 weeks. Maternity leaves are offered to all mothers during the time of pregnancy in all spheres of employment.

Paternity leave in India

There were no nation-wide laws on paternity leave in India, although certain provisions were made in some sectors where paternity leave is given to working fathers.

For the first time in 1999, the Indian government made an announcement under Rule 551 A of Central Civil Services, permitting a male Central Government employee with less than two surviving children to avail 15 days of paternity leave to take care of his wife and infant 15 days before or within six months after child’s birth.

Many attempts were taken by Judiciary and Legislation to devise policies regarding paternity leave in India.

Paternity leave and Indian judiciary

In view of the fact that the private companies are left to their liberty on decisions regarding paternity leave, there are numerous instances where queries concerning paternity leave have reached Hon’ble Courts but none of them succeeded in getting nationwide formulation of policies.

There are cases where some courts directed the private institutions to grant paternity leave to their employees and the same is rejected by some courts.

In Chander Mohan Jain v. N.K. Bagrodia Public School[3]; Mohan, a private school teacher filed a suit against Bagrodia Public School as the school denied his paternity leave and deducted his salary. Even though there are no regulations governing such leave Hon’ble High Court of Delhi in 2009 ordered the school to grant paternity leave and directed the school to refund the money that was deducted. Consequently, private-sector teachers are eligible for paid leave.

In the case of Rakesh Malik v. State of Haryana, the petitioner who was a state government employee challenged the denial of paternity leave in the High Court and urged the Court under the ambit of Article 226 to frame such policy but the Court denied.

Paternity leave and legislation

The aftereffect of many suits filed in front of various courts resulted in a proposal of a Paternity leave Bill in Loksabha by MP Rajiv Satay with the following objectives.[4]

• Employees of all sectors of the economy should avail the benefits from the Paternity Benefit act 2017
• Employers need to pay the paternity amount after submission of convincing proofs.
• Male employees having less than 2 living children are allowed to take paternity leave for a maximum of fifteen days and this leave can be availed within 6 months from the date of birth of infant.
• If the employer fails to provide such provision to male employees under this act, he will be sentenced to imprisonment for not less than three months but not more than one year and liable for a fine not less than Rs. 20,000 but not more than Rs. 50,000.

Unfortunately, the proposed bill could not be passed into law, and India was left with no legislation on paternity leave.

Uphold equality in India

India is known for its rigid traditions and cultures that enforce the gender-conforming roles of men and women. The Indian Constitution is to ascertain equality in the nation. There are several articles enshrined in the Constitution which ensure gender equality in the society.

These articles protect the women’s rights and to ensure fair justice, equal access to opportunities in occupation related matters and to empower government to take steps to prevent any discrimination faced by the citizens or to take steps in order to maintain gender equality in the country.

Some of the articles are Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42. In various judgements court held that the Maternity Benefit Act and all other acts having similar provision to Maternity Benefits Act are to read with Article 42 of Indian constitution.

Now in the Municipal Corporation of Delhi v. Female Workers[5] case, the apex court said that “just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Becoming a mother is the most natural phenomenon in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her The Maternity Benefit Act, aims to provide all these facilities to a working woman in a dignified manner.”

Need for amendment in Article 42 – Adding paternity leave

As per the aforementioned ruling, the Maternity Relief Act, and all other similar laws, the mother’s sole task is to raise her children, which are still prevalent even 75 years after the country gained its freedom.

Despite the fact that the mother is the one who gives birth to the kid biologically, several studies and research have revealed that the father plays an equally significant part in the child’s development.

Article 42 is therefore incomplete. Directive Principles of State Policies (DPSP)s are not court-enforceable which means that no court may compel the government to uphold these Principles or enact legislation relating to them.

It is crucial to amend Article 42 under the DPSPs of the Constitution because it is the only provision in the entire document that provides for maternity leave. Such an amendment will have an educational value and send a message for a more gender-neutral society.

Being the biggest and oldest democracy in the world and having maternity and paternity leave spelled out in the constitution, India will communicate to the rest of the world its vision of a fair and impartial world.

A review by the Centre for Social Research for the National Commission of Women said “The right to paternity leave could be crucial for changes in the relationships and perceptions of parenting roles. The report of the Labour Ministry acknowledged that for women, decent maternity leave alone “results in mounting a very huge pressure of family, childcare responsibilities as well as demands of workplace”.

In the absence of parental leave, child care is solely the responsibility of a mother a paternity leave programme will aid in gradual attitude changes and the removal of gender roles. The International Labor Organization (ILO) published a report on “Fathers who take leave, particularly those taking paternity leaves” are most likely to be involved with their children”.

Conclusion

We are in the 21^st century and many are heading towards the modern era challenging the traditional way of looking into the working of society. In this situation we ought to initiate to realise that fathers have equal responsibility in caretaking and mothers are equally talented and skilful to be breadwinners of family.

The establishment of paternity leave will be a stepping stone in ascertaining gender- neutral parenting, modifying the view of society on gender-based norms and practices, and advancement in gender stereotypes.

Paternity benefit leaves address the challenges from different dimensions.

1. Firstly, it reduces the burden of women in household works during pregnancy.
2. Secondly encourages men to avail leave without any shame, which on other hand changes the stereotypical men to adapt to modern meaning of parenting.
3. Thirdly increases the participation of women as this policy break gender bias

The analysis of policies across the world regarding paternity leave upholds that there is a growing awareness. As a segment of this policy India introduced a bill called the Paternity benefit bill on 2017 which provides benefits to new working fathers. Nevertheless, it is not free from flaws.

References:

[1]Paternity leave and Article 42 – IJIRL. (n.d.). Retrieved December 7, 2022, from https://ijirl.com/wp-content/uploads/2022/02/PATERNITY-LEAVE-AND-ARTICLE-42.pdf

[2]Indian kanoon – search engine for Indian law. (n.d.). Retrieved December 7, 2022, from https://indiankanoon.org/doc/111604/

[3]Paternity leave and Article 42 – IJIRL. (n.d.). Retrieved December 7, 2022, from https://ijirl.com/wp-content/uploads/2022/02/PATERNITY-LEAVE-AND-ARTICLE-42.pdf

[4] THE PATERNITY BENEFIT ACT 2017

[5]Municipal Corporation of Delhi vs Female Workers (Muster Roll) and … (n.d.). Retrieved December 7, 2022, from https://indiankanoon.org/doc/808569/

This article has been authored by Sumanth Ravi a student at Sastra University.