The Supreme Court of India in a recent order in Shalini Dharmani v State of Himachal Pradesh reaffirmed that Child Care Leave granted to women was in furtherance of the Constitutional guarantee of enabling and promoting women’s participation in the workplace, relying on the golden triangle of fundamental rights: equality, liberty and the right to life (Articles 14, 15, 19 and 21 of the Indian Constitution). While this order recognises the need for State infrastructure that is responsive to gender equality, the order and the Court’s jurisprudence on childcare leave do not go far enough in challenging the public-private divide vis-à-vis the gendered division of labour at home.

Child Care Leave is different from maternity leave as the former enables a Government Servant to take 730 days of leave to undertake childcare for her minor children. The Central Civil Service Leave Rules 1972 (Leave Rules) also allows for Child Care Leave to be taken by female employees with disabled children up to the age of 22 years. In Shalini, the petitioner had a fourteen-year-old son who suffered from a rare genetic disorder, whose medical condition required a significant amount of care from his mother. The petitioner was working in a Government College in the State of Himachal Pradesh, which had removed the provision on Child Care Leave from its applicable state leave rules. The Supreme Court ordered that a committee be set up to consider the applicability of Child Care Leave, on two grounds. The first was fulfilling the Constitutional Entitlement of women’s participation in the workplace and ensuring that mothers did not have to leave the workforce because of their childcare responsibilities. The second was bringing the state leave rules in line with the objects and purposes of the Right of Persons with Disabilities Act 2016, to support mothers of children with special needs.

This order is in line with previous Supreme Court judgments which have allowed for a purposive construction and relaxed applicability of the Maternity Benefits Act and the Leave Rules on grounds of gender equality, by rooting them in the special provisions that can be made for women under Article 15(3) of the Constitution. The Court’s jurisprudence reflects a rich conception of substantive equality, as it redresses the material disadvantage that mothers with caring responsibilities face at the workplace. However, the flipside of this is that such benefits, which are justified as special measures for women, reinforce the gendered stereotype that women are and should be the primary caregivers.

This stereotype is further reinforced by minimal-to-no paternity leave in India. There is no Paternity Benefits Act similar to the Maternity Benefits Act 1961, which is widely applicable to central, state, and local government workplaces, shops, and establishments. Paternity Leave of 15 days can only be located within the Central Civil Service Leave Rules, which apply to a narrow band of civil servants. Further, Child Care Leave is primarily applicable to female government servants; only ‘single male government servants’ can avail it in the absence of women in their lives – i.e. if the male servants are unmarried, divorced, or widowed.

Therefore, even if Maternity Benefits and Child Care Leave are framed as questions of gender equality, the gaze remains unsatisfactorily locked onto the public sphere. While the Supreme Court has recognised women’s unequal responsibilities of childcare, it has not explicitly questioned the prevalence of women’s double burden: undertaking both productive and reproductive labour, in the workplace and within the house. This cannot merely be explained away as a cultural phenomenon. When there are laws that explicitly structure the division of caregiving labour in a manner that does not allow men the time or opportunity to participate in childcare, the State is actively perpetuating patterns of gender inequality. Cases like Shalini can only go so far in ensuring women’s equal participation in the workforce. The Courts and the State need to shatter the public-private divide and use law as a tool to affirm that childcare is the responsibility of all parents, thus creating structural changes in the division of labour at home as well.

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