On Monday, a Supreme Court bench headed by Chief Justice of India D Y Chandrachud said, “Participation of women in the workforce is a matter not just of privilege but a constitutional entitlement protected by Article 15 of the Constitution. The state as a model employer cannot be oblivious to the special concerns which arise in the case of women who are part of the workforce.” They were hearing a plea by an assistant professor in the Government College, Nalagarh, who was denied childcare leave (CCL) to attend to her child suffering from a genetic condition. Women government employees are eligible for two years of CCL for two children till they reach the age of 18 years. Her employer had argued that it was the state’s choice to not adopt the policy. The judgment highlighted that Article 15 of the Constitution not only restricts discrimination based on gender but also enables the states to make special provisions for women.
The judgment comes at a time when concerns about the low participation rate of women in the workforce have been expressed in various circles and state and central governments have acknowledged the need for childcare services to bolster women’s participation in paid work. In a country where care is perceived as the responsibility of women, the verdict makes it clear that the state and the employer have responsibilities to enable women to join and retain their employment.
In India, women have little choice but to single-handedly manage the triple burden of housework, care work and paid work. As per the Time Use Survey of India, 2019, Indian men spend 173 minutes compared to 433 minutes spent by women for unpaid domestic and care work. Socially and economically marginalised women are more stretched. Working women often face “marriage penalties” and “motherhood penalties” as they are often temporarily forced to withdraw from the workforce due to marriage and pregnancy. It is no surprise that the female workforce participation in India is barely 37 per cent. As per PLFS 2022, 60 per cent women are self-employed and 53 per cent of the self-employed women work as unpaid family helpers. These are intertwined outcomes of lack of opportunities in the labour market and opting for flexible employment near or at home to balance both.
The Constitution enables the state to make special provisions for women and children. The sectoral labour laws that were repealed recently after the introduction of four Labour Codes mandated childcare services on worksites and paid maternity leaves for a section of workers at construction sites, beedi, cigar and other factories, plantations and migrants These laws mandated crèches on worksites that had a stipulated number of women on the work site. As the Annual Reports of the Ministry of Labour and Employment show, they were rarely implemented.
The provision went through a transformation under the Labour Code on Social Protection, 2020, where crèches were made a gender-neutral entitlement. It is a significant step in the right direction. The gender-neutral provision underlined care as a “parental” responsibility. However, the entitlement was limited to employees of establishments with 50 or more employees. This leaves out a large number of women, who are part of informal production processes.
Crèches under the grants-in-aid welfare programme. National Crèches Scheme, remained underfunded and limited in number and use. Under its Mission Shakti project, the Ministry of Women and Child Development had introduced the “Palna Scheme”. It provided options to the state governments to open standalone crèches or turn Anganwadi centres into crèches. The state governments of Haryana, Karnataka, Odisha, and Assam have started taking initiatives. Many states are trying to introduce Anganwadi centre-cum crèches. These endeavours are worth celebrating. However, there is a need to institutionalise the initiative with a committed budget.
Given the patriarchal history of childcare, there is a long way to go. Care needs to be seen as a collective responsibility of the state, employers, and communities. Labour markets need to consider women as primary earners and enable them to take up full employment. There is evidence of high female labour force participation in countries where unpaid care work responsibilities are equally shared. A decrease in women’s unpaid care work is related to a 10-percentage point increase in women’s labour force participation rate. The IMF has predicted a possible alleviation of 27 per cent in India’s GDP through an equal participation of women in the labour force participation.
The writers are with mobile creches
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