India’s Maternity Leave Law Currently Benefits Fewer Than 1% of All Women
India’s maternity leave law benefits fewer than 1% of all women, according to a new analysis published in The Independent Review.
Under the law, employers with 10 or more workers must offer any pregnant employee 26 weeks of paid maternity leave. But given that 70% of India’s women are not in the labor force, and most of the women who do work operate in the unregulated, informal sector (even within the formal workforce, many women are employed in informal, gray-area capacities), few are eligible for protection under India’s Maternity Benefits (Amendment) Act, 2017. Taking an estimate that women make up 20% of India’s formal workforce (a little higher than the average of recent estimates, which range from 10.7% to 27%), the authors — Shruti Rajagopalan and Alexander Tabarrok — make the case that the law would apply to only 1.3% of the entire formal labor force and less than 1% of all Indian women. And even among this small amount, the authors argue, the law will likely be ignored by their employers.
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Given this, the analysis calls the figure a “mismatch between the Indian state’s ambitions and its abilities” and casts the current maternity leave policy as a response to “premature demands by Indian elite for policies more appropriate to a developed country.”
The provisions of the maternity leave law are “part of what the Indian elite thinks is good, just, and prestigious in the international community,” the authors continued. When it was passed, “the labor minister, called it ‘a gift on International Women’s Day’ and proudly noted that Indian women will get more maternity leave than what is provided in developed countries such as Japan, Germany, the United Kingdom, and South Korea. India’s maternity leave law was thus a point of national pride similar to its mission to Mars.”
There’s some truth to this analysis, and it’s difficult to feel entirely comfortable rebutting the argument as a person who is part of the elite the paper excoriates. Does the maternity act benefit a relative handful of women? Yes. Does that mean it’s inappropriate in India’s current milieu? Not at all. It boils down to a difference in perception of what laws are for. To the authors, it is clear laws should be responsive only to on-the-ground, mass realities. To others, law is “an intellectual system, identified by its expressive and aspirational qualities and its ideological claims to promote order and justice.”
The aim of the maternity benefits act is very aspirational and oriented to promote justice. Will it take time for that justice to be experienced by all working women? Unfortunately, the answer is: absolutely. Inequity in our society is vast. But arguably, it is better to have a beneficial law in place as social inequity evens out — which, despite the current economic downturn, is likely in the future; India’s middle class is expected to more than triple to 89 million households by 2025.
The government, of course, has much to do to ensure more and more Indian women can avail of the legal benefits of this law; it should be doing more to formalize the unorganized sector and make sure the women who work in it are assured of the same rights as their organized-sector peers. But as more women join the formal labor force, isn’t it better that more will be able to avail of these established maternity benefits, rather than being forced to wait around till some magical quorum accumulates that justifies protecting the rights of pregnant working women?
The argument also ignores the possibility that the legal provisions within the maternity leave act might encourage women’s greater participation in the formal labor force, too. Given social norms that expect women to be home with children, especially babies, and that see women shouldering more than 10 times the amount of unpaid domestic labor as their male partners, an ensured and comparatively lengthy leave may (a) encourage women to return to work (and their families to allow them), and (b) actually enable them to do so by allowing women to focus on unpaid carework when the load is at its highest and they likely have the least help — right after the birth of a child.
The authors, in their conclusion, offer this quote from Edward Glaeser: “A country that cannot provide clean water for its citizens should not be in the business of regulating film dialogue.” I’d agree, if only because I’m an advocate for free speech. But when it comes to protecting the rights of minorities — and pregnant women, especially pregnant women who work in the formal labor force, are a minority — a government has a duty to offer protection, even as it works toward addressing the bigger problems, like access to water, and, of course, protecting the rights of even more vulnerable minorities. Two things — many things — can be done at once, and in concert, toward a better, more equal future.