Analysing Legal Entitlement For Women Amid Disproportionate Caregiving Burden

In April 2024, a bench comprising Chief Justice of India D Y Chandrachud and J B Pardiwala, 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.”

The top court was hearing a plea filed by an assistant professor who was denied a two-year-long childcare leave to attend to her child with a genetic condition. Although she was entitled to this leave as a government employee at the Nalagarh Government College, both the college and the high court had denied it as Himachal Pradesh opted not to implement it in the state as a choice. However, the Supreme Court upheld her constitutional right to participate in the workforce. 

Analysing The Burden Of Unpaid Labour From A Legal Viewpoint

The case brings into sharp focus not only the disproportionate caregiving burden that women bear but also the lack of understanding and recourses available to them to ease this unpaid labour. In India, more than 90% of women work in the informal sector which is devoid of any childcare entitlements. It is thus no surprise that the workforce participation of women in India is only 37%. As per PLFS 2022, 60% of women are self-employed and 53% of them work as unpaid family helpers. The Time Use Survey of India, 2019, found that while women spent 433 minutes (7.2 hours) per day on unpaid labour, Indian men spent a mere 173 minutes (2.8 hours).  Women who are socially and economically marginalised are even more stretched in terms of time and work burden.

The Supreme Court judgment coincided with the Lok Sabha elections and came at an opportune moment when the low participation rate of women in the workforce was already a burning issue in the public domain. Consequently, the Election Manifestos of all parties make several promises and guarantees to empower women and increase their participation in the workforce. 

Both the Congress and the BJP have highlighted the concern for low female participation in the workforce in the formal and informal sectors. To address this, the parties recognised care work and gender inequality associated with it as one of the major hindrances to female work participation. 

Congress

1. The Congress party has mentioned ‘same work same wage’ to bridge the gender pay gap and increase women force participation in the country, in their manifesto. 

2. The contribution of the Central government to the pay of frontline health workers (such as ASHA, Anganwadi, Mid-Day Meal cooks, etc.) will be doubled.

3. Appoint a second ASHA (accredited social health activist) worker in all villages with a population exceeding 2,500 persons.

4. Creating an additional 14 lakh jobs by doubling the number of Anganwadi workers.

BJP

1. Development of infrastructure such as working women’s hostels, creches etc. in the vicinity of industrial and commercial centres to increase the participation of women in the workforce.

Other political parties like the RJD recognise the need for nutrition and schooling of girls to avail opportunities later in life. The CPI (M), like always, has reinforced the right to work for all in their manifesto. 

These are positive and welcome promises made by both national parties. However, without economic and legal empowerment, women will continue to face unfair burdens of unpaid work. The parties partially addressed the concern by pledging social protection of care workers, doubling their income, shifting care work responsibilities to Anganwadi and ASHA workers and providing creche services. But what is missing are the larger challenges of women's work due to an all-pervasive gender inequality in unpaid work.

 It is often seen women cannot refuse unpaid work from employers as a majority of women work in the informal sector where there is no proper definition of the scope of work and employer-employee relationship. This keeps women in the informal sector legally disempowered.

Further, while providing creche services for low-income families is promised, the fact remains that the number of creches has reduced from 25000 in 2013 to 3900 in 2023. While the Anganwadi system allows for effective outreach to the poorest of communities, it also grapples with vacant positions, low pay to Anganwadi workers, and lacks essential capacities. 

Therefore, the promises made are welcome and the SC verdict on a similar line also recognises women’s work as an entitlement and not a privilege is a good beginning. However, what is required is the recognition of the unpaid work burden borne by women and how it insidiously acts as a barrier restraining access to livelihood opportunities for them. 

The need of the hour is to strengthen policy that not only recognises this burden but also empowers women with concrete infrastructure and services that redistribute the skewed load of unpaid, domestic labour from them – thus eliminating the time poverty they face. Only with such definite steps backed by policy and legal entitlements will enable women e to participate equally in the workforce.

Authored by Aparajita Sharma and Sudeshna Sengupta - Members, Alliance for Right to ECD

Views expressed are the author's own.