Author: Sanya Singh
I Year | Institute of Law, Nirma University, Ahmedabad

Introduction:

“While childbearing is a role specific to women, the law fails to account for child rearing as an equal responsibility of both partners.”

The Supreme Court’s landmark decision in Shalini Dharmani v. The State of Himachal Pradesh unequivocally emphasizes that women’s participation in the workforce constitutes a constitutional right, not merely a privilege. Article 15(3) of the Indian Constitution imposes a mandatory obligation on the State to address the specific needs of working women. While this judgment commendably acknowledges the necessity for state infrastructure to be responsive to gender equality, the childcare leave provisions do not adequately confront the entrenched divide between the public and private spheres, nor the unequal distribution of labour based on gender.

Supreme Court on Childcare: The Shalini Dharmani Case

The case of Shalini Dharmani v. The State of Himachal Pradesh[1]is centred on a petitioner employed at a government college. Ms. Dharmani’s fourteen-year-old son suffered from a rare genetic disorder necessitating extensive care. However, her request for leave was denied due to the state’s removal of the Child Care Leave provision from its relevant leave regulations. Notably, Child Care Leave offers government employees 730 days of paid leave to look after their minor children. Furthermore, the Central Civil Service Leave Rules of 1972 explicitly permit female employees to utilize Child Care Leave for disabled children up to 22 years.[2]

Ms. Dharmani appealed the High Court’s verdict, arguing that the state’s selective adoption of leave rules contradicted the principles of a welfare state. The Supreme Court bench, in addressing this issue, emphasized the critical role of childcare leave in ensuring women’s continued participation in the workforce. Without such provisions, mothers may be forced to leave their careers.

The Court’s order established a committee to evaluate the applicability of Child Care Leave based on two key objectives. Firstly, to uphold the constitutional right of women’s workforce participation. Secondly, to align state leave rules with the goals of the Rights of Persons with Disabilities Act 2016, specifically supporting mothers raising children with special needs. This decision exemplifies the Court’s commitment to substantive equality, actively addressing the material disadvantages that working mothers face with childcare responsibilities.

Gender Bias Embedded In Childcare Policy:

These supposedly beneficial measures for women have a paradoxical effect. They perpetuate the entrenched stereotype that childcare falls solely on women’s shoulders. Protective legislation, often enacted with good intentions, fails to consider the social realities surrounding gender roles. This is demonstrably true with childcare leave.

The Maternity Benefit Act, intended to support working mothers, offers no comparable benefit for fathers seeking paternity leave. Similarly, childcare leave available to government employees until their child reaches adulthood is exclusively available to women. The Central Civil Service Leave Rules offer a meagre 15-day paternity leave option, but only for a limited group of civil servants. The vast unorganized sector remains entirely without any provisions for paternity leave.

Despite framing maternity benefits and childcare leave as tools for gender equality, the focus remains disappointingly narrow, confined to the public sphere. The Supreme Court, while acknowledging the unequal childcare burden women shoulder, fails to explicitly challenge the pervasive issue of women’s “double burden.”

Protective Childcare Policy: Help Or Hinder Women’s Equality

The lack of legal frameworks enabling partnership in childcare disproportionately burdens women. As the sole recipients of childcare-related legal benefits, women are effectively relegated to the role of primary caregiver at home. This cannot be dismissed as a mere cultural quirk. Laws that structurally prevent men from participating in childcare, through unequal leave provisions, actively perpetuate gender inequality.

Article 15(3)[3] empowers the State to enact gender-specific legislation to rectify historical disadvantages faced by women. While drafted with the noble intention of empowering mothers, such gender-specific parenting rights can backfire. They reinforce regressive gender stereotypes based on socially constructed roles that ultimately discriminate against women. These discriminatory practices directly contradict the spirit of the Constitution.

The exclusive allocation of childcare leave to women reinforces their role as primary caregivers, thereby perpetuating their disadvantage. This protective legislation, lacking a corresponding right for fathers, fails to grasp the realities of childcare in contemporary India.

The State faces a critical juncture. Must it revisit existing laws and confront a fundamental question: Does the disproportionate burden of childcare on women create a situation prohibited by Article 14 of the Constitution where women are denied equal opportunity in the workplace?

Childcare As A Shared Responsibility:

Germany presents a compelling model for legislative policy on childcare. They offer generous paid maternity leave, encompassing both pre- and post-partum periods. Furthermore, Germany extends unpaid parental leave for up to three years, accessible to either or both parents. This leave can be taken concurrently or sequentially, providing maximum flexibility for working families. The government bolsters this system with parental allowance and financially supporting childcare during this extended leave period.[4] Crucially, employers are legally prohibited from terminating parental leave or altering positions or working hours upon an employee’s return. Germany’s childcare leave policy is a powerful example of how legislation can ensure equal parenting rights.[5]

India can enact transformative legislation modelled after Germany’s successful approach. This would entail offering extended and flexible parental leave options accessible to both, mothers and fathers. During this leave period, providing financial support for childcare and implementing strong job security measures upon an employee’s return would encourage equal parental participation and break down the entrenched gender bias in childcare responsibilities.

Conclusion:

The judiciary’s role in dismantling gendered childcare is limited. Striking down existing legislation would create a chaotic void in the childcare leave landscape. The onus falls squarely on the legislature to rectify this disparity. Only comprehensive legislative reform, addressing the imbalances in central and state childcare leave provisions, can bridge this gap. True gender equality at home hinges on achieving equality in childcare responsibilities – a task that demands proactive legislative action, beyond judicial intervention.

[1] Shalini Dharmani v. The State Of Himachal Pradesh SLP (C) No. 016864 – / 2021

[2] Central Civil Services (Leave) Rules, 1972. DoPT. (2023). https://documents.doptcirculars.nic.in/D2/D02est/latest%20consolidated%20ruleMsnzh.pdf

[3] INDIA CONST. art. 15

[4] Vij, S. (2021, September 26). Gendered Childcare in India: Time for “he” for “she.” Bar and Bench – Indian Legal news. https://www.barandbench.com/columns/gendered-childcare-in-india-time-for-he-for-she

[5] Vij, S. (2021, September 26). Gendered Childcare in India: Time for “he” for “she.” Bar and Bench – Indian Legal news. https://www.barandbench.com/columns/gendered-childcare-in-india-time-for-he-for-she