The Case for Paternity Leave — SC Nudges India Toward Shared Parenting

The Case for Paternity Leave — SC Nudges India Toward Shared Parenting

🗞️ Why in News The Supreme Court, in Hamsaanandini Nanduri v. Union of India (2026 INSC 246) on March 17, 2026, struck down Section 60(4) of the Code on Social Security, 2020 and urged the Centre to frame a comprehensive paternity leave law, observing that “proximity is not identical to presence.”

What the Supreme Court Said

The bench of Justices J.B. Pardiwala and R. Mahadevan struck down Section 60(4) — which restricted maternity benefit for adoptive mothers to cases where the child was below three months — as violating Articles 14 and 21.

Beyond the immediate question, the Court made a broader institutional call: India needs statutory paternity leave. A father who remains physically near his child but is bound by professional obligations remains fundamentally disengaged from early caregiving.

The Court noted that Sections 43-A and 43-AA of the CCS (Leave) Rules, 1972 grant central government male employees only 15 days of paternity leave. This limited provision does not extend to the private sector at all.

India’s Profoundly Asymmetric Legal Framework

The Maternity Benefit Act, 1961 (amended 2017) provides 26 weeks of paid maternity leave — among the most generous globally. Paternity leave has no statutory foundation in Indian labour law.

The Failed 2017 Bill

The Paternity Benefit Bill, 2017 — introduced by Congress MP Rajeev Satav — proposed 15 days extendable to 3 months for all workers including private and unorganised sectors. It would have benefited over 32 crore men. The bill was never passed. After Satav’s death in 2021, it was not reintroduced.

The Code on Social Security, 2020, despite consolidating nine labour laws including the Maternity Benefit Act, contains no paternity leave provision — a conspicuous silence the Supreme Court has now flagged.

Global Comparison — India Lags Behind

35 of 38 OECD countries provide paid father-specific leave. Globally, 121 of 186 countries offer some form of paternity leave (ILO, 2024).

The average across OECD nations is ~13 weeks of paid father-specific leave. India’s 15-day central government provision does not even rank.

Arguments For Mandatory Paternity Leave

Dismantles the motherhood penalty: When only mothers get leave, employers view women of childbearing age as liabilities. This directly depresses hiring, promotions, and pay for women. Mandatory paternity leave signals caregiving is a shared obligation.

Boosts female LFPR: India’s Female Labour Force Participation Rate stood at 41.7% (usual status, age 15+, PLFS July 2023 - June 2024) against a global average of ~47%. OECD data consistently shows countries with generous paternity leave have higher female LFPR.

Child development: Research shows active paternal involvement in early childhood improves cognitive, emotional, and social outcomes. Paternity leave creates structural conditions for father-child bonding during critical early weeks.

Constitutional basis: Article 21 protects the father’s right to participate in upbringing. Article 15(3) empowers special provisions for women and children. Article 39(f) requires the State to ensure children develop in conditions of dignity.

Economic productivity: Swedish and Norwegian studies show fathers who take paternity leave show higher long-term engagement in caregiving tasks, enabling dual-income households — a positive externality for GDP growth.

Arguments Against and Challenges

Employer cost burden: Mandatory paid leave imposes direct costs, particularly on the MSME sector (over 11 crore employees). The 2017 Maternity Benefit amendment already faced criticism for discouraging female hiring — adding paternity leave could compound resistance.

Low uptake even where available: Japan offers up to one year of childcare leave but uptake reached only 40% in 2024 despite aggressive campaigns. Cultural norms around masculinity remain powerful deterrents. Legislation alone does not change behaviour.

Unorganised sector coverage: Over 90% of India’s workforce is informal. Employer-mandated leave is meaningless for self-employed workers, daily wage labourers, and gig workers. A social insurance funding mechanism is essential.

Fiscal implications: If paternity benefits are funded through social insurance (as ILO Convention 183 recommends), ESIC or a new fund would need to absorb costs. Financial viability requires actuarial assessment.

Tokenism risk: A 15-day leave is arguably too short to change caregiving patterns. But extending to 8-16 weeks (Nordic levels) faces political and cost resistance. India risks adopting a minimal provision that changes nothing in practice.

Way Forward

1. Amend the Code on Social Security, 2020: Include a dedicated chapter on paternity benefit as a statutory right — minimum 15 days extendable to 8 weeks, with phased implementation by enterprise size.

2. Social insurance funding: Follow the ILO model — fund paternity leave through ESIC rather than sole employer liability. This removes the incentive to discriminate against young male employees.

3. Non-transferable father’s quota: Adopt the Nordic “use-it-or-lose-it” design. Norway introduced this in 1993 and saw father’s participation jump from 4% to over 70% within a decade. Transferable leave defaults to mothers.

4. Phased rollout: Start with formal sector (10+ employees), extend progressively. For the unorganised sector, link to e-Shram portal registration (30+ crore workers registered) and fund via government contribution + employer cess.

5. Tax incentives for MSMEs: Provide tax benefits for compliant MSMEs. Add parental leave policies as a disclosure metric under Section 135 (CSR reporting) of the Companies Act, 2013.

6. Institutional leadership: The judiciary, armed forces, police, and central government must lead by example. Formalise the Supreme Court’s 2024 recommendation for all courts to grant paternity leave.

UPSC Relevance

Prelims: Code on Social Security 2020 (Section 60), Maternity Benefit Act 1961 (amended 2017 — 26 weeks), CCS Leave Rules (15-day paternity leave — Rule 43-A), four Labour Codes (Wages 2019, IR 2020, SS 2020, OSH 2020), ILO Convention 183, Article 14, Article 21, Article 39(f). Mains GS1: Gender roles and caregiving; impact of paternity leave on female LFPR; Nordic model of shared parenting; cultural barriers to male caregiving in India. Mains GS2: SC judgment in Hamsaanandini Nanduri v. UoI (2026); judicial activism vs. legislative reform; social security as fundamental right; Labour Codes implementation status.

📌 Facts Corner — Knowledgepedia

Supreme Court Judgment — Hamsaanandini Nanduri v. Union of India (2026 INSC 246):

• Date: March 17, 2026
• Bench: Justices J.B. Pardiwala and R. Mahadevan
• Struck down: Section 60(4), Code on Social Security, 2020
• Constitutional violation: Articles 14 and 21
• Held: Adoptive mothers entitled to 12 weeks maternity leave regardless of child’s age
• Key observation: “Proximity is not identical to presence” — urged Centre to frame paternity leave law

Maternity Leave in India:

• Maternity Benefit Act, 1961 (amended 2017): 26 weeks paid leave for first two children; 12 weeks for third child onwards
• Applies to establishments with 10+ employees
• Code on Social Security, 2020: consolidates maternity provisions under Chapter VI (Sections 56-64)
• CCS Leave Rules: 180 days maternity leave + 730 days Child Care Leave (central government)
• Creche facility mandatory for establishments with 50+ employees (from 2017 amendment)

Paternity Leave in India:

• Central government: 15 days paid leave (CCS Leave Rules, Rule 43-A)
• Private sector: no statutory provision — employer discretion only
• Unorganised sector: no provision at all
• Paternity Benefit Bill, 2017: introduced by MP Rajeev Satav; proposed 15 days extendable to 3 months; never passed
• Code on Social Security, 2020: contains no paternity leave provision

Global Paternity Leave Data (OECD, 2024):

• 35 out of 38 OECD countries provide paid father-specific leave
• Average duration: ~13 weeks of paid father-specific leave across OECD
• Average paid paternity leave specifically: 2.4 weeks
• Spain: 16 weeks (longest in OECD; 17 weeks from July 2025)
• South Korea: 20 days (increased from 10 days, effective February 2025)
• Norway: 15 weeks father’s quota (first country with father’s quota, 1993)
• Iceland: 6 months per parent (equal non-transferable quota)
• Japan: 4 weeks paternity + up to 52 weeks childcare leave; 40% father uptake in 2024
• 121 out of 186 countries globally offer some form of paternity leave (ILO, 2024)

India’s Female Labour Force Participation Rate (PLFS):

• FLFPR (usual status, age 15+): 41.7% (July 2023 - June 2024)
• Rural FLFPR nearly doubled: from 23.5% (2017-18) to 42.8% (2023-24)
• Global average female LFPR: approximately 47%

Four Labour Codes:

• Code on Wages, 2019 (replaces 4 Acts)
• Industrial Relations Code, 2020 (replaces 3 Acts)
• Code on Social Security, 2020 (replaces 9 Acts including Maternity Benefit Act, EPF Act, ESI Act)
• Occupational Safety, Health and Working Conditions Code, 2020 (replaces 13 Acts)
• Status: all passed by Parliament; rules not yet notified by most states

Other Relevant Facts:

• ILO Convention 183 (Maternity Protection, 2000): minimum 14 weeks; Recommendation 191 suggests 18 weeks
• ILO recommends social insurance funding for parental benefits (not sole employer liability)
• Article 39(f): State to ensure children develop in conditions of dignity
• ESIC coverage: approximately 3.7 crore insured persons (2024)
• MSME sector employs over 11 crore people in India
• e-Shram portal: 30+ crore unorganised workers registered

Sources: The Hindu, LiveLaw, OECD, PIB, ILO