Mandatory paternity leave; an important step in gender equality

Sudeep Sudhakaran

Why mandatory paternity leave? This question can be answered from multiple standpoints. But it should be started from maternity rights in India.

According to the Maternity Benefit Act, passed in 1961, the most important legislation in India regarding maternity labour rights, a female worker in India is entitled to 26 weeks of paid leave with fewer than two surviving children, and 12 weeks otherwise. Applicable to establishments with 10 or more employees, the benefits are also extended to adoptive and commissioning mothers who avail the procedure of surrogacy.

This Act also mandates nursing breaks, a medical bonus, and access to crèche facilities in larger establishments. This legislation aims to support women's health and caregiving responsibilities and ensure their continued participation in the workforce.

But it is important not to be carried away by the progressive veneer of this legislation. In reality, according to the Periodic Labour Force Survey (PLFS) data for 2022-23, 94 per cent of Indian working women are excluded from the protection under this Act. The major culprit here is the structure of our labour laws that deny rights to workers based upon certain definitions which require a number threshold. Here, for example, if you work in the unorganised sector, defined as places where fewer than 10 people work, the chance of getting paid maternity leave is almost zero even legally. As a result, the majority of our workforce who engage in such an unorganised sector fail to reach the legal minimum eligibility.

But on the other hand, there is not even a mandatory paternity leave in the Indian labour law system. For multiple reasons, having such a leave would benefit everyone; women, men, children, and society at large.

We live in a highly patriarchal society where childcare and associated work are historically considered the realm of women. Women go through constant pressure to meet the expectations set up by families and society at large. These expectations reinforce the gender hierarchy by glorifying such duties. When a legal system only protects and promotes maternity leave without paternity leave, it, in a way, reinforces the same gender stereotypes. The introduction of universal paternity leave would empower those challenging this notion. It would send a message that childcare is not the responsibility of women alone, but a shared one in which men must necessarily take part. It will also normalise the role of men in early childcare duties.

Having mandatory paternity leave will also ensure a better level playing field for everyone. In the practical reality of our workplaces, legal maternity leaves are often used against women in the form of discrimination, either while in employment or by outright exclusion from jobs, because the law is seen as an unnecessary nuisance. Almost every female job aspirant in this country would have faced a question like, “When are you planning to get married?” “Do you have children?” “Do you plan to have children?” etc. Women who avail this leave are considered by many employers as less efficient and a financial burden. But imagine men are also eligible for such caregiver leave. That means the economic logic of profit is no longer tilted against women alone, meaning a level playing field can be achieved.

Even when someone completely omits the interest of female employees here, an important question can still be asked: is it not fair to argue that the child deserves the father's care and attention? Just like every mother, every father deserves the right and opportunity to participate meaningfully in the early stages of their child’s life.

In the last few decades, the world has seen tremendous improvement across the globe on this question. According to the International Labour Organisation (ILO), over 90 countries provide some form of statutory paternity leave, though the length and generosity of provisions vary widely.

Then what stops India from this progressive step?

Sudeep Sudhakaran is an Assistant Professor of Law at St. Joseph’s College of Law, Bengaluru, with four years of academic experience. His work focuses on human rights law and labour law. An LLM graduate from Azim Premji University specialising in Law and Development, he is engaged in teaching, research, and academic discourse at the intersection of law, rights, and social justice.

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