In the Monsoon Session of the Parliament last year, Mr. Rajeev Satav pushed for the unconventional. A Member of Parliament from Hingoli, Maharashtra, Mr. Satav sought to introduce the Paternity Benefit Bill, 2017, which aimed to ensure gender equality in terms of child care. The Bill was to complement the Maternity Benefit Act, 2016 by filling in the gaps in the latter, and promoting inclusive child care. Mr. Satav had initially observed that the lack of paternal child care leaves reflected the stereotype that child rearing was the woman’s chore to handle. The push for legislating paternity leaves came from a growing consciousness of gender equal parenting which provides a much more holistic upbringing for the child. With private companies opening up to the possibility of longer paternal leaves, the state took the initiative to ensure parental leaves across organized and unorganized sectors.
Until we hit an old roadblock a few days ago. For the past year, high school teacher Ms. Shikha Sarkar has been engaged in a legal tussle with her employer school. When she took a month off for maternity leave in February 2017, the school slashed a month of her pay, reasoning that because she took the said leave before it could be approved, they were entitled to withhold payment for her wilful absenteeism without permission. It seems positively gothic that in an age where we’re normalising paternity leaves, women are disentitled from the very instance that sparks gender equal parenting. The Calcutta High Court has held that in addition to being grossly violative of a woman’s right to equality and non-discrimination under Articles 14 and 15, granting child care leaves solely to the mother perpetuated existing notions of patriarchy. Justice Protik Prakash Banerjee explained that provisions which conferred affirmative rights on women to the extent of giving them sole responsibility of child rearing, dented the individual independent identity of a woman. On a broader perspective, Justice Banerjee highlighted the incongruity between patriarchy and democracy. He opined that since patriarchy was inconsistent with the normative demands of democratic constitutionalism, its persistence was a continuing threat to democracy.
Patriarchy persists despite democratic safeguards, because of inclinations towards behaviour that has been ritualised over centuries. It is accepted, appreciated and at times even applauded for women to switch career for childcare. For men, it is a non-issue. Pushing for paternity leaves is one way to push for inclusive child care practices, to take down patriarchy, and uphold the principles of democratic constitutionalism, as Justice Banerjee so supports. And even though it is not a foolproof system, alternative policies come with their own socio-cultural drawbacks. Australian companies have begun to move away from traditional maternity leave by opening up upto six months of parental leave to the primary caregiver. Since men invariably earn more than women thanks to a larger gender wage gap, it becomes economically un-viable for the man to take a childcare leave. In Iceland, three months of parental leave is reserved for fathers, with another three months to be split between the two parents as they wish. The idea is to push for gender inclusive parenting by building a culture which enables fathers to take the time off to care for their children. This turns them toward taking on their fair share of domestic chores and breaks the cyclic wage gap differences that mount over the years.
The move toward gender equal parenting cannot move forward when there exists a structure of authority that works to the detriment of women. In the context of the school’s action of withholding Ms. Sarkar’s salary, Justice Banerjee pointed out that were her child to have suffered an injury, the school would never have asked her to wait until leave was sanctioned to take her child to the hospital. In doing so, he warned of how patriarchal thinking had influenced thinking to the extent that even flawed attitudes were considered legal and actionable. Justice Banerjee observed that because Indian society adhered to authority structured around a patriarchal psychology, patriarchy had come to be nature, akin to a ‘God’s Law’. The move for gender equal parenting policy is certainly imminent, but definitely not by flouting existing policy precedents set for Indian women.
Priyanshi Vakharia is a Research Associate (Legal Reform) at One Future Collective.
Featured image: Sandy Millar