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Pulling The Right To Fatherhood Out Of Oblivion: An Overview Of Paternity Leave In India

Ayushi Kushwaha
14 Aug 2020 1:50 PM GMT
Pulling The Right To Fatherhood Out Of Oblivion: An Overview Of Paternity Leave In India
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The traditional notions which have been characterising the dynamics of a family do not avail much support in the 21st century. Heavy intervention of work-related responsibilities in familial dimension has mandated transformation in the way we perceive the needs of a family in the contemporary world.

Ages have gone by with women being considered as the primary caretakers of children, and still these notions seem to persist despite lingering resistance from progressive societies. A parochial image is drawn of women, whose primary purpose in a marital setting is, inter alia¸ to ensure positive upbringing of their children. Today, such imposition, of course, invites a barrage of criticism that the said understanding of women undermines their abilities to engage in activities beyond the domestic circle. True as that is, amid the loudness of these debates, we tend to forget the role of fathers in child development.

There remains an unhealthy notion that men are primary breadwinners, and that their role is ancillary to that of women's in the upbringing of children. It is this very notion that stands in blatant violation of a man's right to parenthood and secludes the participation of fathers in the process of child development. What fans these sentiments is the extension of these beliefs beyond households and within workplaces.

PATERNITY LEAVE AND THE ISSUES

  1. The Emotional Dimension

Enabling greater participation of fathers is imperative for child development and offers the much-needed partner support that allows mothers to undertake decision-making in a better manner. The essence has been aptly summarised in Maternity and Paternity at Work Report 2014 published under the aegis of International Labour Organization that upholds the relevance of involving fathers in childcare and ensuring that they are as active as parents as mothers are.[1]

  1. The Societal Dimension

Lately, countries have taken up the issue of paternity leave as a key matter in national policy, and trends show that a significant number of countries have either laid down a general policy on paternity leave or come forth with a statutorily mandated paternity leave. However, state intervention in this matter does not put to rest the tussle with the prejudice which marks societies and workplaces, as paternity leave may experience scepticism since it is understood as something that challenges the notions of masculinity.[2] There are, still, other factors that need to be taken into account.

  1. The Economic Dimension

The concepts of "paid" and "unpaid" paternity leave affect the attitudinal patterns of fathers taking up the leave. In many jurisdictions, there are provisions for unpaid paternity leave, but the unpaid feature disincentivises men from taking their leaves because while fathers are essential for child development, economic factors are heavily attributable to the quality of child development. In a survey conducted in the US in 2012, there are about three out of ten individuals who did not get paid paternal leave causing them to cut-short their leave.[3]

  1. The Women Labour Dimension

Lack of paternity leave affects the working potential of women as well. There remains fewer literature on the effects of lack of paternity leave on women labour force. As men are not given or given inadequate paternity leaves, women are forced to drop out from jobs to cater to the needs of family in the postnatal period. In a large-scale study conducted in 30 OECD countries, paternal leave policies were assessed and it was found that the lack of paid paternity leaves affect women employment rates. Countries with no or insufficient paid paternity leave were found to have more dropout rates of women employees.[4]

INDIA & PATERNITY LEAVE

India is one of those countries with no national policy on Paternity leave. The societal, economic and workplace-related factors contribute to the lack of such policy on a matter as important as maternity leave. However, and quite fortunately, there has been a significant rise in independent efforts of governmental offices and private firms in the introduction of paternity leave for their employees.

The Swedish powerhouse IKEA, for example, which has recently started its operations in India, provides for a six-month parental leave for all its employees.[5] Deutsche Bank joined the bandwagon in 2016 when it had introduced a six-month childcare leave to its male employees.[6] Microsoft India, too, has increased the duration of paternity leave from two to six weeks.[7] Tata Steel also maintains a ten-day paternity leave scheme for its employees.

Mercer India, a consulting firm, reports[8] that big firms in India have been more engaged in securing the right of parenthood to their male employees than firms in more developed countries such as Hong Kong, Singapore, Japan, and Ireland. It is to be noted that big firms have been especially responsible for the spike in the provision of qualitative paternity leave.

In the government sector, there are provisions on paternity leave, though the coverage and duration have not been as extensive as that of those offered by firms and have varied immensely. For example, the All India and Central Civil Services Rules[9] allow Central government employees 15 days of paid paternity leave.[10] In 2018, the Haryana Government decided to provide fifteen-day paternity leave.[11] It has also been reported that the West Bengal government is mulling over an extension of paternity leave to forty-five days from thirty. As per the Memorandum of the Finance Department of the West Bengal Government, the said leave will be paid and can be availed during childbirth and up to the age of 18 years of the child.[12] Other state governments have introduced their own policies on paternity leave.

  1. Lack of a National Policy and the Ground Reality

The picture painted above looks rosy, but it is not. Despite the initiatives taken up by the private and governmental sectors, the lack of a national policy on paternity leave allows non-uniformity in the application of paternity leave.

Considering the lack of uniformity in application, a Paternity Benefit Bill[13] has been proposed which envisages availing of paternity leave up to a period of three months. The Bill has been hailed as a progressive step, but is marked by issues which need to be resolved to ensure that fathers actually take up the leave.

Moreover, the story of reduced take up of paternity leave does not end up with lack of a national policy. There are society-grown and workplace-grown factors that contribute to the attitudes of male employees. Even as the media has gone virtual and world-encompassing, male employees are not aware of existing paternity leave policies (if any) in their organisations. Those who are aware seem to not avail these leaves because of economic factors, especially those who come from low-income families. Moreover, despite all the campaigning about gender equality, the traditional notions of men being the primary breadwinner come in way of them availing paternity leave benefits. The effect of the same has been felt in a number of survey results and studies conducted throughout the country.

  1. The Legal Dimension

Under the Constitution, Indian citizens are guaranteed certain fundamental rights that ensure that their existence is beyond 'animal' existence, and that they are able to effectively enforce these rights in their public and private affairs. The right to fatherhood may have not been explicitly mentioned as a fundamental right, but considering the ongoing discourse on paternity leave and how the right to fatherhood amounts to a human right, one cannot easily deny the relevance of fatherhood in the exercise of right to life under Article 21.

In 2016, the Uttarakhand High Court explicitly mentioned that irrespective of whether a male employee is employed on a regular or temporary basis, he is entitled to paternity or childcare leave. These leaves contribute to childcare and motherhood under Article 21 to be read in conjunction with Article 42.[14] The ruling upholds the right to fatherhood as a fundamental right of fathers, and paternity leave as an effective instrument in the hands of fathers to ensure their contribution to the development of their children. The legal system cannot treat paternal responsibilities towards a child as less important as that of maternal responsibilities. Both are essential for the overall development of the child, and any discrimination between the two may be hit under Article 14.

Paternity leave is not just an Indian problem; it is the problem of the world which is still plagued by gender-centric stereotypes. Men, seen as the primary breadwinners and secondary caregivers, are often denied their right to equally participate in the development of their child. Their involvement in a domestic responsibility—understood to be solely a woman's—becomes a subject of speculation on their manhood. Moreover, where men are extended offers to take up leaves, they hesitate because of the low economic incentives provided in the schemes, which invariably affect the financial stability of household, especially if they are the only sources of income in the house.

A national policy may not be the final solution, but surely can engineering the societal perspectives in a positive direction. There will, however, be many issues to deliberated upon before a national policy rolls in operation because the impact is felt not only by fathers and their family but also the organizations extending these leaves. Of course, what remains unchallenged is that lack of paternity leaves is tantamount to denial of parenthood to fathers. It is not the question of whether we can implement a national paternity leave policy. We are part of a changing era where rights are given but acknowledge. Hence, the right question is when we shall implement a national paternity leave policy—because the right already exists, and the only thing remains is its realization.

Views are personal only.
(The Author is an Asst. Professor of Law, in Amity University, Lucknow)

[1] "Maternity and Paternity at Work" (ILO) <https://www.ilo.org/wcmsp5/groups/public/@dgreports/@dcomm/@publ/documents/publication/wcms_242615.pdf> accessed August 2, 2020

[2] "Report for the Research Project 'Paternity Leave: Impacts ..." (oru.diva-portal) <http://oru.diva-portal.org/smash/get/diva2:717640/FULLTEXT01.pdf> accessed August 2, 2020

[3] "Why Parental Leave For Fathers Is So Important For Working Families" (DigitalCommons2016) <https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=2604&context=key_workplace> accessed August 2, 2020

[4] Kalb G, "Paid Parental Leave and Female Labour Supply: A Review" (2018) 94 Economic Record 80 <https://onlinelibrary.wiley.com/doi/pdf/10.1111/1475-4932.12371> accessed August 2, 2020

[5] Dasgupta B and Khosla V, "Companies Go Liberal in Giving Time off to New Dads" (The Economic TimesSeptember 5, 2017) <https://economictimes.indiatimes.com/jobs/companies-go-liberal-in-giving-time-off-to-new-dads/articleshow/60368366.cms> accessed August 2, 2020

[6] ibid

[7] ibid

[8] "Infographic: Paternity Leave Focus" (Mercer2017) <https://www.mercer.com/our-thinking/infographic-paternity-leave-focus.html> accessed August 2, 2020

[9] R. 18(B), The All India Services (Leave) Rules, 1955

[10] ibid

[11] "Haryana CM Manohar Lal Khattar Announces 15-Day Paternity Leave for Government Employees" (The Financial ExpressJune 4, 2018) <https://www.financialexpress.com/india-news/haryana-cm-manohar-khattar-announces-15-day-paternity-leave-for-government-employees/1192944/> accessed August 2, 2020

[12] "Child Care Leave for West Bengal State Govt. Employees" (WBXPressJuly 29, 2015) <https://wbxpress.com/child-care-leave/> accessed August 2, 2020

[13] The Paternity Benefit Bill 2017

[14]Dr Shanti Mehra v State of Uttarakhand & Ors(Uttarakhand High Court), Writ Petition No. 99 of 2015 (S/B)

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