This blog is written by Advika Mattoo and Yash Raj Gupta, Students at Dr. Ram Manohar Lohia National Law University
Introduction
Many countries have established legislative provisions for paternity leave to intending and existing fathers, but it remains a matter of discussion and argument in India. Although it grants maternity leave as a legal right to female employees, it lacks a centralised paternity leave policy that applies uniformly across the public, private and unorganised sectors. Paternity leave is a paid short leave given to fathers upon the birth of their child to speed up and aid the mother or partner's recovery, providing fathers with the much-needed opportunity to spend quality time with their infants and family.
The Maternity Benefit Act 1961 was enacted to ensure women receive a reasonable leave duration. The objective of the legislation is to let them recover from childbirth and to care for their newborns. Further, the 2017 amendment increased the duration of paid maternity leave from 12 weeks to 26 weeks for the first two children. Other schemes like Janani Suraksha Yojana (JSY) and Pradhan Mantri Matru Vandana Yojana (PMMVY) further ensure financial and healthcare support to pregnant mothers. However, denying paternity leave to the fathers undermines the purpose of providing maternity leave, i.e. 'rest' to the mother because the added burden on the mother gets two-fold: firstly, a safe and healthy postpartum recovery and, secondly, being forced to perform all housekeeping and child-related tasks alone. In juxtaposition, countries like Iceland have been wise to implement an ambitious approach where the father fully participates in their child's care in the early stage of the baby's life. Since 2000, Iceland has offered equal rights to get paid leave for both parents irrespective of their marital status or sexual orientation.
Legal Provisions and Compliance
It is not a lost cause, as there have been attempts to introduce paternity benefit laws in India. In 2017, the Paternity Benefit Bill was introduced by Congress MP Mr Rajeev Satav, wherein the bill granted 15 days (with a maximum leave of up to 3 months) of fully paid leave to fathers in all sectors, including private and unorganised sectors. However, the bill was rejected on the argument that maternity leave is given to help mothers recover from the physical and emotional hardships undergone during the “gestation period”, which the fathers do not undergo, and hence, they cannot be granted the same benefits. However, this reasoning fails to recognise paternity leave's broader purpose and benefits, extending beyond the mother's recovery.
The paternity benefit aims not only to support mothers but is also a medium to facilitate the involvement of fathers in the crucial early stages of a child's life, which is essential for the brain’s growth and development of the child.
The sole provision that talks about paternity leave in India at the central level is found in Section 43- A of Central Civil Services (Leave) Rules, 1972, which grants a male government servant a leave for a period of 15 days during the confinement of his wife for childbirth, i.e., up to 15 days before, or up to six months from the date of delivery of the child. Further, paternity leave can also be availed by adoptive parents in accordance with section 43 AA of the Act. Coming to the state level, there are also a few Indian states that have their own paternity leave laws. Kerala grants a paternity leave up to 10 days before or up to 3 months from the “date of delivery of the child” each for two children to its government male employees, while Section 103 A of the Rajasthan Service Rules, 1951 grants paternity leave (maximum two times) for a period of 15 days during the confinement of his wife, i.e. 15 days before to three months after childbirth. However, if such leave is not availed within this period, it shall be treated as lapsed. Nevertheless, there needs to be a complete solution to the problem as these legislations are not applicable in the private and other unorganised sectors, eliminating a large portion of the working class’s access to paternity leave benefits.
Analysis of Judicial Precedents
Despite the lack of statutory support, with its rulings, the Indian judicial system supports the need for paternity benefit laws in India. It has not only upheld a father's right to parenthood but has also emphasised the child's fundamental right. For instance, the Madras High Court ("HC") has held that the grant of maternity/paternity leave is to ensure proper pre-natal/post-natal care, which is the fundamental right of the child to the protection of life as guaranteed under Article 21 of the Indian Constitution. The petitioner was allowed to seek paternity leave to attend his wife's delivery on the pretext that the right follows from the child's right to live, survive, health and development of childhood.
The Supreme Court, keeping aside the mode of employment, held that “every female and male employee, whether appointed on a regular basis, contractual basis, ad hoc/tenure or temporary basis, has a fundamental right to a reasonable duration of maternity leave as well as paternity leave, childcare leave (CCL) and adoption leave to promote motherhood and child care under Article 21 read with Article 42 of the Constitution of India”. Similarly, the Delhi HC granted paternity leave to a postgraduate teacher in an unaided public school, stating that all unaided recognised schools are running under the control of the Director of Education as per DSEAR, 1973.
Hence, it is clear that paternity leave is not a foreign concept in Indian jurisprudence. However, it is essential to note that this right is still recognised as a right stemming from the right to life of the child and not as a standalone right of the father as opposed to the nature of the right given to the mother.
Global Outlook on Paternity Leave
Since the topic of paternity leave under labour law is of significant concern globally, it is imperative to examine countries that are making several improvements to resolve this worldwide issue; one of the best examples is Iceland. The policies initiated by the Icelandic government are noteworthy, providing fathers with non-transferable family leave for 12 months, split equally between the parents. It is funded by the government and employer payroll taxes. Iceland is committed towards its people by implementing paternity leave, even for those with unconventional employment or family situations, enabling significant paid leave to support early childcare. The Icelandic government also made changes in their policy, which took effect in January 2023, following which the parents are now entitled to take “six months” leave in case the baby dies, “three months” in cases of stillbirth and “two months” in cases of miscarriage. Following this, Finland made considerable changes, too. According to the new Finnish parental leave legislation, the reform increased the number of days to 160 for paid days off quota, i.e., the total length of parental leave goes from 12 to more than 14 months and are also given child home care allowance.
In Lithuania, paternity leave, known as "tėvystės atostogos," is provided for 28 calendar days with an upper limit of three months following the child's birth. It is managed by the Ministry of Social Security and Labour. Eligible fathers receive 77.58% of their previous net earnings. There are no variations in leave based on family circumstances, such as multiple births, and the rest cannot be delegated to another person.
Another example is the law in Sweden called the Parental Leave Act, or "Föräldraledighetslagen" in Swedish, which has established an exceptional global benchmark by providing 240 days of parental leave per parent. It ensures that both parents can equally participate in early childcare. Hence, a total of 480 days of paid parental leave is received by a parent. This leave is paid at 77.6% of earnings for 195 days and a flat rate for the remaining 45 days.
At the global level, no specific convention solely focuses on paternity benefits for fathers. However, a few of them lay down the basic ground policies ensuring parental involvement. One of the most prominent is the I.L.O. Maternity Protection Convention,2000, which aims at maternity protection and stresses the needs of a child's upbringing, valuing both parents' roles and encouraging states to provide paternity or parental leave. Similarly, the I.L.O. Workers with Family Responsibilities Recommendation,1981 encourages steps to balance family and work responsibilities, including parental leave for fathers and mothers.
Conclusion
The legislature must understand the significant role of fathers and fatherhood in the upbringing of a newborn. It is also well-recognised scientifically, and the recent pronouncements in neurobiological research highlight the impact of a father's active role on children's mental development. Scientists have studied the formation of neural connections, which occur in the initial thousand days of a kid's life, and it is pivotal and helps to better the foundation of their emotional health and cognitive skills. Further research sheds light on fathers' significant duties towards their children in the development stage and teaches them to create a safe and supportive environment.
The most pressing question is: what practical steps should one take to support fatherhood?
Firstly, it is imperative to bring change at the legislative level by enacting specific provisions for regulating paternity leave in the private and unorganised sectors and preventing its exploitation. Secondly, small steps by the big enterprises can help strengthen the father-child bond and back the company's commitment to advancing gender equality in its workspace. Steps like flexible working hours and ensuring the leverage of paid paternity leave, parent-friendly company policies, considering employee feedback regarding the policy and its implementation, and other suitable methods can be adopted. Thirdly, educating the masses about equality in gender roles post-legal recognition creates an excellent opportunity for changing cultural perspectives that respect and embrace the idea of men in caregiver roles, which also contributes to establishing an emotional bond between the father and the child in the initial stage and being a big helping hand to supporting mothers during the testing postpartum period. In conclusion, this achieves the larger objective of promoting a more equitable sharing of responsibilities in childcare and fostering a deep sense of involvement that benefits society.
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