- Avani Agarwal*
Each time the law attempts to deal with gender within the context of equality and difference, it runs into a split in the road, where both paths are equally treacherous. Defined by Carole Pateman as the Wollstonecraft dilemma in 1989,  it has been noted that while one path ignores the socially sustained differences between men and women and requires women to “become (like) men”, the other acknowledges, and reinforces, these differences. With reference to care work, what this means is that women can either strive to meet the gold standard of employment as set by men, or have their commitment to care work recognized at the danger of being viewed as less committed, or even less competent, workers. Pateman has suggested that the only way to move forward is to simultaneously work for the recognition and defeminization of care work. Feminist authors have argued that defeminization can only happen if the opinion of men towards care work is altered, and they are given not only the ability, but also the incentive, to get involved.
This theoretical framework has served as a useful tool in the analysis of equality and non-discrimination legislation across the globe. In this post, the Indian government’s measure of providing Child Care Leave (‘CCL’) has been considered in light of the Wollstonecraft dilemma.
I. Framing CCL as an Anti-Discrimination Measure
CCL was formally introduced in India based on the Sixth Pay Commission’s Report in 2008 (‘the Report’), which suggested that women employees of the Central Government be allowed to take a total of seven hundred and thirty days of leave, which may be taken in numerous blocks with a minimum leave duration of fifteen days, to take care of minor children. Accordingly, Rule 43C was introduced in the Central Civil Service (Leave) Rules 1972 (‘CCS Rules’). The government indicated no reasoning for its decision to introduce CCL, except that it was done on the basis of the Commission’s recommendations. As a result, the best way to determine the intent behind CCL is to consider the rationale offered in the Report.
Insofar as discrimination law is seen as a tool for removing “substantial relative group disadvantage”, CCL is best understood as an anti-discrimination measure. The Report has explicitly relied upon the “dual responsibilities borne by working women and the increasing practical difficulties in balancing work and family responsibilities” in making this suggestion. Further, the suggestion for CCL is placed within a broad category of issues faced by working women, including those of accommodation, transfers etc. The Report has also referred to the international recognition of parental leave, which is most prominently based on an equality discourse that considers child care provisions necessary to secure equal opportunities for women. Thus, it is clear that the Pay Commission saw CCL as a mechanism of redressing the disadvantages faced by women in the workplace.
II. The Failings of CCL as an Anti-Discrimination Measure
In providing women with 2 years of paid leave to take care of their children, it is true that the Indian government has undertaken a measure that is perhaps unparalleled in terms of its extent across the world. However, this appears to have come at a significant cost, because the leave is provided to a very limited group of women.
First, the CCS Rules apply only to government employment. Since these rules are the only legal framework to include provisions on CCL based on the Report’s suggestions, the leave is only mandatorily available for women who are public employees. Even within public employment, the Rules are limited to employment associated with Union affairs, and do not apply to a range of public employers. State government employers and Public Sector Undertakings are, for instance, not automatically bound by the Rules. While state governments can come up with their own versions of CCL if they wish, Public Sector Undertakings are free to decide if they want to provide CCL in consultation with their Administrative Ministries. Consequently, the significant group of women who work in the private sector have no access to CCL.
Second, when the intersection of class and gender is considered, it is found that the exclusion disproportionately impacts the poorest of women. An obvious manifestation of this class bias is that casual workers, daily-wage workers, part-time employees, and contract labourers are not covered under the Rules. Another important consequence is that when women in formal employment are denied leave to care for their children, it is likely that the care obligation will be shifted to “hired domestic workers who are a predominantly female and largely invisible”. It is the hired household workers who are forced to bear the dual burden of paid and unpaid care work. Consequently, CCL is structured to not only exclude, but further detriment, women who are relatively impoverished.
A third form of exclusion comes from Rule 43C, which provides that CCL can be granted only for the care of the “two eldest surviving children”. Soon after the first notification about the introduction of CCL, the government released a clarification that while the two years of leave can be taken in the name of the first two children, it will not be admissible for the third child. Since the number of days of leave remain the same irrespective of which child they are being admitted for, this restriction appears to be propelled not by an economic rationale, but by the same policy consideration that motivated the Supreme Court to suggest that the employment of air hostesses may be terminated upon their third pregnancy - population control. The denial of CCL for the care of more than two children follows a long trend of invisibilizing men from family planning. This trend is most clearly visible through the way family planning programmes treat women as primary contraceptive users, and through surveys indicating that a large proportion of Indian men continue to see family planning as a responsibility of women. Such a policy becomes even more arbitrary when one considers the level of control that men exercise ‘over female bodies’ in matters of reproduction.
A second concern that relates to how the CCL legal framework is created is that the text is ‘suspicious’ of the women it seeks to benefit. Rule 43C contains restrictive provisions, such as the fact that CCL may be taken only three times per year, because it was feared that if women could take CCL at will, they would disrupt work. The Seventh Pay Commission declared that there is a “palpable need to bring in some inhibiting feature so as to ensure that only genuinely affected employees avail of this scheme”, and suggested that the second year of leave should only be granted at 80% of the pay. Unsurprisingly, the government was quick to act on this recommendation, and amended the rule accordingly. In contrast, when the government ministries were asked to consider an amendment which would require that CCL not be refused normally unless there are “grave and extraordinarily compelling circumstances that warrant refusal”, it was not found viable. Notably, the Central Civil Services Rules do state that paternity leave shall not normally be rejected under any circumstances, suggesting that the suspicion is reserved for women. It is thus apparent that the CCL provisions are premised on an expectation of disingenuity and exploitation from women. If the rules perpetuate such dangerous stereotypes, it is not difficult to imagine that women who take CCL may be treated as less committed workers. Indeed, the Seventh Pay Commission received complaints about the increased gender discrimination since the institution of CCL, but found that the best response was to legitimize the stereotypes that cause discrimination in the first place.
III. Dilemma Unresolved: Gendering and Valuation of Care Work
Carol Pateman’s solution to the Wollstonecraft Dilemma in the context of care work is to bring forth two changes at the same time. Care work needs to be ‘defeminized’ and seen as a more universal responsibility, and its value needs to be recognized to the fullest extent. When CCL is analysed with reference to the Wollstonecraft dilemma, it appears that the leave has failed in both metrics laid out by Pateman, because it consistently genders care-work, and places its value to be minimal in reference to ‘productive’ work as undertaken during the course of employment.
CCL is only provided to women, and constant demands for its extension to fathers have been ignored. Only recently has the leave been extended to single fathers, making it clear that the State anticipates care work to fall on men only when there are no women in the picture. The policy thus only reinforces societal bias. Any argument about this being economically motivated must also fail, when it is considered that demands for shared parental leave, where the same number of days could be divided between mothers and fathers, have also been denied. Perhaps more importantly, the way CCL is envisioned makes it impossible for it to be extended to men with any degree of practical success. First, while studies across the world have found that fathers need to be encouraged towards parental leave, the entire CCL structure is built with the intention to ‘disincentivize’ parents from taking it. As discussed above, women who apply for the leave are viewed with suspicion, and the rules are routinely being amended to reduce the number of people who can avail of it. Second, it has been noted that the longer the length of the leave, the less likely fathers are to take it and contribute in care-work. In light of this, the fact that the provisions regulating CCL continue to enforce a minimum leave duration of fifteen days is troubling. Thus, CCL, in its current form, cannot be seen to defeminize child care, as it currently functions on the assumption that only women undertake care-work. Furthermore, it is also structured in such a manner that it cannot be extended to fathers in the current social context.
Since the government, albeit in a limited context, is providing women with seven hundred and thirty days of paid leave to care for their children, it appears to be acknowledging the value of care work. However, this conclusion is not supported by a review of the rules and notices. Rule 7 clarifies that no leave can be claimed as a matter of right, and almost every notice dealing with CCL stresses on precisely this point. As previously discussed, measures are constantly being taken to discourage women from taking CCL. The notices offer insight into why the state is so wary to ensure that CCL is understood to be purely discretionary, citing an economic rationale of “harmonizing the smooth functioning of the offices” and preventing any disruptions. The same economic rationale allows a majority of government employers to exercise discretion in providing CCL at all. For instance, RITES chose to terminate the employment of a woman in 2017 after she publicly demanded CCL, and they announced that their Board of Directors did not find CCL to be economically feasible due to “commitment to the projects and clients, peculiar nature of work, (and) affordability of the company”. This suggests that far from valuing care work as much as ‘productive work’, the two are being pitted against each other such that care work is understood as a cost attached to hiring women.
This post has reviewed the rules governing the provision of child care leave in India, in light of the fact that policies about gender require a balance between equality and difference. While there is reason to believe that CCL was intended to serve as an anti-discrimination measure, three significant flaws inhibit the pursuit of this objective. First, the rules exclude a large number of women, and no alternative policies have been introduced to reduce the disadvantage women face due to their invisibilized household obligations. This exclusion has a disproportionate impact on women without permanent employment and on domestic workers. Second, the CCL rule has an inherent bias against women, which has only become more deeply entrenched over the years. Finally, the CCL policy is premised on the belief that childcare is a woman’s personal burden, and makes no effort to universalize care-work, or to uphold its value. Instead, it is framed as a discretionary provision best understood as a cost associated with hiring women, who cannot participate in the labour force equally due to their private considerations. In providing for CCL, the State has thus cast itself as a benevolent employer while erasing both its culpability in making care-work a woman’s job, and its responsibility towards equality and social reproduction. Consequently, CCL can be located directly on the second path of the Wollstonecraft Dilemma. It recognizes care work in a manner that stigmatizes women as inferior employees, reinforcing the very difference which it sought to alleviate.
*Avani Agarwal is a fifth-year student at NALSAR University of Law, Hyderabad, and a future trainee solicitor at Linklaters, London.
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