Is raising a child a mother’s job alone? – The need for paternity leave laws in India

The announcement of Facebook CEO Mark Zuckerberg[i] stating that he would be taking a two-month paternity leave took the world by shock, looking at how novel the concept of paternity leave was back then. Since then, we as a society have evolved. The recent 26-week paternity leave announced by the Indian food delivery app Zomato[ii] is a significant proof of it. And yet, India remains among the 90 out of the 187 countries in the world that lack national policies to ensure that new fathers get adequate paid time off with their newborns.[iii] In this article the author discusses the existing laws in India regarding paternity leave and moves on to analyze the proposed paternity leave bill in India, concluding with whether India is ready for this change or not.

Existing Laws

There are provisions in the Maternity Benefit Act, 1961[iv]which entitles women to ‘maternity benefit’ i.e. a fully paid absence from work as well as protection of employment during that time. An amendment[v] was brought in 2017, which extended the paid maternity leave from three months to a minimum of six months. Now, the Act along with its amendment provides for 26 weeks of leave with pay to biological mothers, 12 weeks to adoptive mothers, and 6 weeks of paid leave for women facing miscarriage or any pregnancy-related illness. However, on the other side, the paternity benefits laws in India remain under a grey area. They are wholly arbitrary and left upon the discretion of the private employer. However, the Central government took a step forward in 1999 when it introduced a fifteen-day paternal leave policy for its male employees. The central government male employees come under the Central Civil Services (Leave) Rule 551 (A)[vi] which provides fathers with less than two surviving children with a 15-day leave which is to be availed within 6 months from the birth of the child. If not availed, it will be considered invalid. It also provides for the leave salary of the 15 day period to be paid before the leave is availed.

However, no such paternity leave sanctions exist for private sectors. It is left upon the private employers/ companies to formulate their own internal policies in any manner they wish. Though regarded as a western concept, some of the big corporate giants in India have acknowledged this and have taken steps to amend their HR policies. Recently, the $44-billion Aditya Birla Group introduced this benefit for its male employees.[vii] Microsoft provides 12 weeks[viii], Infosys only 5 days[ix], Facebook leads with 17 weeks[x], Starbucks offer 12 weeks[xi], TCS gives 15 days[xii], Oracle just 5 days[xiii], while Deloitte gives their employees 16 weeks of paternity leave[xiv]. The pattern observed is that Indian arms of MNC’s are far more generous than India-based companies, with their leave ranging from 6 to 12 weeks at least whereas Indian firms stick to only 7-10 days.

Some HR heads of private companies argue that there’s no need for a separate leave since a privilege leave can double up as paternity leave. The 14 billion JSW group follows this pattern by offering paternity leave as a part of their privilege leave package[xv] whereas some biggies such as Novartis believe in gender-neutral parental leave.[xvi] This is quite a commendable achievement that extends a non-transferable leave to father as well as mothers for a specific time period and leaves the rest of the leave flexible, allowing swapping between the parents. This directly strikes at the age-old assumption of child care being the sole responsibility of the mother and discourages discrimination/ marginalization that women suffer yet remain silent about.

In an interesting turn of events, in 2009, a private school teacher named Chander Mohan Jain had petitioned Delhi HC[xvii], challenging the rejection of his paternity leave application as well as the salary deduction by N K Bagrodia Public School. Despite lacking concrete legislation in this regard, the HC held that all male employees of unaided and recognized private schools have the right to paternity leave and instructed the school to refund the salary. While this judgment may not have paved the way for a paternity benefit act, it does highlight that there has been some traction in India to give men the opportunity to bond with their newborn.

The proposed Paternity Benefit Bill: Light at the end of the tunnel?

Taking a cue from the enactment of the Maternity Benefit (Amendment) Act 2017, a proposal for  Paternity Benefit Bill, 2018 (“PB Bill“)[xviii] was put in Lok Sabha. It mandated a minimum 15-day leave that could be extended to 3 months for the new fathers. The main idea behind it was to emphasize the paramount importance of a father in a child’s upbringing and provide them with a chance for indulging in child bonding without compromising with their role as the provider of the family.

If the PB bill gets the force of law, it will bring the much-needed comfort to the male parents since it covers organized as well as unorganized sectors (where less than 10 persons are employed), along with those self-employed. Every male employee who’s provided his service for a minimum of 80 days in the twelve months immediately preceding the expected date of delivery of child would be able to derive benefit out of this. The only limitation would be its non-applicability on a man who has recently immigrated into the state and whose wife was pregnant at the time of immigration.

The paternity benefits would be calculated at the average daily wage paid to the employee for the number of days actually worked by him. There’s also a provision for the creation of a fund known as the Parental Benefit Scheme Fund towards which the employer, employee, and the Central Government have to contribute a certain amount. This fund would be used to cover the costs concerning paternity benefits under the PB Bill. Furthermore, the central government is also bestowed with the right to issue guidelines to be known as the ‘Parental Benefit Scheme’ for the sole aim of rendering paternity benefits to every new father under the said Bill. If this bill ever sees the light of the day, not only will it stop the reinforcement of stereotypical gender roles, but it would create equal level hiring grounds for women and men. It very common for female candidates to face a bias during the hiring process since companies do not wish to waste their resources on a candidate most likely to go on leave for a year.   Research done by the Journal of Applied Psychology[xix] as well as a report by ILO[xx] found that maternity leave length is perceived as an indicator of women’s agency and commitment to the job and thus used to gauge their dedication, highlighting the level of scrutiny a women employee undergoes when taking her rightfully earned maternity leave. WEF’s Global Gender Gap Report ranked India 149th out of 153 countries showing a drop of women workforce from 37% to 18% in the last 13 years.[xxi] Among a variety of reasons which might be behind this drop, like taking permission for work, attitudes towards working women, sexual harassment, safety, and discrimination, motherhood is a glaring one for women quitting jobs. If a provision comes along which provides this same time off to men, it might lead to a lower dropout rate of women. With a paternity leave provision in place, it will be an equal level playing field for both men and women, as companies would be required to give offs to either of the candidates they hire. Another completely overlooked aspect in the Indian society is the Father-Child bonding which might be improved courtesy this bill. The importance of this relationship is brought out by a 2018 analysis by UNICEF which states that when fathers bond with their babies from the beginning of life, they are more likely to play a more active role in their child’s development.[xxii]

Is India ready for it?

A recent study by Promundo, a US-based organization, found that about 80% men in Egypt, India, Pakistan, Moldova, Nigeria, and Mali believed changing nappies, bathing and feeding children were a woman’s job.[xxiii] It went on to reveal that fewer than half of the fathers around the world even take the paternity leave. This raises the question of whether we as patriarchal minded society would be open to this change, whether the new fathers would be able to face the societal and internal pressures to be a not-so-involved father. Erin M. Rehel, a Youngston University-based research scholar on policy and fatherhood listed out a number of reasons which hinder fathers from taking leaves after childbirth.[xxiv] It includes concerns about reactions from superiors and colleagues, a worry about violating the image of an ideal worker, mothers who discourage increased fathers’ involvement, limited exposure to child care or simply a reluctance to take leave because fathers lack interest in parenting. Those few who stay unbothered about these reasons cripple under when faced with the possibility of their wives (now a mother) lacking an equal hire opportunity when compared to them. This only pressurizes them more to not take the leave. All in all, there’s no doubt the Maternity Benefit (Amendment) Bill is an important victory for all the working women across the nation but a provision for paternity leave would have, in all probability, made a stronger statement. There’s no guarantee of progressive law immediately sparking a change in our accepted social conventions and gender roles but these laws do initiate a debate on what’s conceived normal and what’s not.

[i] Lisa Marie Segarra, Mark Zuckerberg just announced his Paternity Leave Plans, Fortune (Aug. 19, 2017), https://fortune.com/2017/08/18/mark-zuckerberg-paternity-leave/

[ii] Saumya Bhattacharya, Zomato rolls out 26 week Paternity Leave, Economic Times (June 3, 2019), https://economictimes.indiatimes.com/small-biz/startups/newsbuzz/zomato-rolls-out-26-weeks-paternity-leave/articleshow/69634749.cms

[iii] India among over 90 nations without paid paternity leave for new dads: UNICEF, Livemint (14 Jun., 2018), https://economictimes.indiatimes.com/small-biz/startups/newsbuzz/zomato-rolls-out-26-weeks-paternity-leave/articleshow/69634749.cms

[iv] Maternity Benefit Act 1961, https://labour.gov.in/sites/default/files/TheMaternityBenefitAct1961.pdf

[v] The Maternity Benefit (Amendment) Bill 2016, https://www.prsindia.org/uploads/media/Maternity%20Benefit/Maternity%20Benefit%20Bill,%202016.pdf

[vi] Leave Rules, Central Civil Services, Department of Personnel and Training, https://dopt.gov.in/sites/default/files/ccs_leave_rules_0.pdf

[vii] Reeba Zachariah and Namrata Singh, Desi private biggies lag in paternity leave, The times of India (Jun. 12, 2019), https://timesofindia.indiatimes.com/business/india-business/desi-pvt-biggies-lag-in-paternity-leave/articleshow/69747828.cms

[viii] Microsoft India introduces Family Caregiver Leave, Microsoft News Centre India (Apr. 22, 2017), https://news.microsoft.com/en-in/microsoft-india-introduces-family-caregiver-leave/

[ix] Infosys Maternity and Paternity Leave, Glassdoor (Sep. 19, 2018), https://www.glassdoor.co.in/Benefits/Infosys-Maternity-and-Paternity-Leave-India-BNFT113_E7927_N115.htm

[x] Lori Matloff Goler, Facebook Story, https://www.facebook.com/lori/posts/10101025576188894?pnref=story

[xi] Starbucks Parental Leave Benefits, Starbucks stories and news, https://stories.starbucks.com/stories/2017/starbucks-to-expand-parental-leave-benefits

[xii] Id

[xiii] Leave and Absence Management, Oracle Human Resource Compensation and Benefits Management Guide, https://docs.oracle.com/cd/E18727_01/doc.121/e13564/T175501T524427.htm

[xiv] David Cruickshank, Empowering Parental Leave, Deloitte, https://www2.deloitte.com/global/en/pages/about-deloitte/articles/blogs/empowering-parental-leave-cruickshank-blog.html

[xv] Id

[xvi] Global equal Parental Leave Policy for all Novartis Parents, Novartis (March 14, 2019), https://www.novartis.com/news/global-equal-parental-leave-policy-all-novartis-parents

[xvii] Chander Mohan Jain v. N.K. Bagrodia Public School & Ors., W.P. (C) No. 8104 of 2009.

[xviii] The Paternity Benefit Bill 2017 by Shri Rajeev Satav MP, https://biblehr.com/wp-content/uploads/2017/09/Paternity-Benefits-Bill-2017.pdf

[xix] Hideg, I.,Krstic, A., Trau, R. N. C., and Zarina, T., The unintended consequences of maternity leaves: How agency interventions mitigate the negative effects of longer legislated maternity leaves, Journal of Applied Psychology (2018), https://doi.org/10.1037/apl0000327

[xx] Maternity and Paternity at work: Laws and Practises across the world, International Labour Organization, http://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/—publ/documents/publication/wcms_242615.pdf

[xxi] Womens’ Participation in Indian Workforce plummets from 37% to 18% in 13 years, News18 India, (March 9, 2020), https://www.news18.com/news/india/womens-participation-in-indian-workforce-plummets-from-37-to-18-in-13-years-report-2530921.html

[xxii] Fathers are one of the best yet most underutilized child development report: UNICEF, UNICEF India (June 7, 2018), https://www.unicef.org/india/press-releases/fathers-are-one-best-yet-most-underutilized-child-development-resources-unicef

[xxiii] State of the World’s father: Unlocking the power of men’s care, Promundo Global, https://promundoglobal.org/wp-content/uploads/2019/06/BLS19063_PRO_SOWF_REPORT_015.pdf

[xxiv]Erin M. Rehel,  When dads stay home too: Paternity Leave, Gender and Parenting, Jstor, https://www.jstor.org/stable/43669858?read-now=1&refreqid=excelsior:adec8d500782b04fe54a63160a4ed3ee&seq=1#page_scan_tab_contents


ABOUT THE AUTHOR

Shreya Shrivastava

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Shreya Shrivastava is a third-year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow. She has a keen interest in dispute resolution and policy-making and is motivated towards the issues of gender justice and human rights law in India.

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