Maternity leave is not a question of charity
The Uttarakhand High Court’s judgment has significance for how we think at the intersection of labour and gender equalityUpdated: Dec 06, 2018 12:49 IST
Earlier this year, the High Court of Uttarakhand struck down as unconstitutional a state rule that denied maternity leave to a woman upon her third pregnancy. The High Court held that the rule violated the provisions of the Maternity Benefits Act, which did not authorise discrimination of this kind. However, the High Court also observed that the Rule contravened the spirit of Article 42 of the Indian Constitution, which mandates the State to provide for “securing just and humane conditions of work and for maternity relief”.
Article 42 of the Constitution belongs to the chapter dealing with Directive Principles of State Policy. It is not enforceable in court, serving only as a moral guide to the government. And indeed, the Court’s primary reliance was on the Maternity Benefits Act. However, Justice Rajiv Sharma’s invocation of Article 42 of the Constitution is notable in its own right. This is because, by linking the concept of maternity leave to “just and humane conditions of work”, it acknowledges an important reality that our courts have often been hesitant to confront: the gendered nature of the workplace, and of the broader society.
In the maternity benefits case, this gendered nature presents itself in two sets of social norms: first, in our society, there remains a continuing expectation that women will serve as the primary caregivers, as far as the raising of children is concerned. And secondly, workplace norms prioritise instrumental efficiency, and penalise those who take time off to engage in activities that are not considered “work” (such as, for instance, care giving and child raising).
A combination of these two factors, as the scholar Joan Williams has observed, ensures that the baseline rules of the workplace are not neutral, and operate to the disadvantage of women. In short, they are “... structured so that everyone ... is limited to two unacceptable choices — men’s traditional life patterns or economic marginality ... people are [either] limited to being ideal workers, which leaves them with inadequate time to devote to parenting, and being primary parents condemned to relative poverty ... or economic vulnerability.” In other words, the “ideal worker”, being male, is expected not to become pregnant, and consequently, the baseline rules are constructed from his perspective. Within this framework, maternity leave is visualised as a necessary evil, an efficiency burden that is caused due to women becoming pregnant. Consequently, women who enter the workforce are faced with an impossible choice: they must both conform to the male standard at the workplace (or lose out on career advancement), and also deal with social norms that expect them to continue shouldering family responsibilities. Thus, there have been conflicts over whether and to what extent maternity leave is to be paid for, how long it must be, how it will affect promotional and career avenues, and of course — as the Uttarakhand Rules stipulated — whether it can be capped.
But all of this, as Williams goes to point out, is the result of a “cultural decision to resolve the conflicts between home and work where they have always been resolved: on the backs of women ... the career patterns that accommodate women’s child care responsibilities often are ones that hurt women’s earning potential”. There is, in other words, nothing “natural” about this state of affairs, but a conscious set of decisions that we, as a society, have taken.
It is, therefore, that Justice Sharma’s invocation of Article 42 of the Constitution, in the context of maternity leave, becomes significant: it frames the debate within the contours of justice (“... just and humane conditions of work.”). It therefore recognises — at least implicitly — that restricting maternity leave is not a question of charity, or pity, or kindness, but a question of justice. And once we accept that the rules governing labour and the workplace are subject to the requirements of justice, we can liberate ourselves from accepting them as they stand, and think from scratch about how to design workplaces that take into account existing imbalances of power in society, and work towards redressing them, rather than perpetuating them. For this reason, the Uttarakhand High Court’s judgment — despite, at its base, being a straightforward ruling on statutory interpretation — has greater significance for how we think at the intersection of labour and gender equality.
Gautam Bhatia is an advocate in the Supreme Court
The views expressed are personal