The Supreme Court on Monday said that participation of women in the workforce is a constitutional entitlement and denying a mother’s child care leave violates this entitlement.
The bench of Chief Justice of India, D Y Chandrachud, and Justice J B Pardiwala, in its order, 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 bench declared the order while hearing a plea by a woman who is an assistant professor at Himachal Pradesh’s Nalagarh government college. The woman claimed that the government of Himachal Pradesh denied her child care leave as she wanted to attend to her child suffering from Osteogenesis Imperfecta, a genetic condition.
The bench said that the provision of childcare leave to women sub-serves is an important constitutional objective as it ensures that women are not deprived of their due participation as members of the workforce. “Otherwise, in the absence of provision for child care leave, a mother may be constrained to leave the workforce,” it added.
The bench highlighted that the consideration becomes more strong in such a case where a mother serves a child with special needs. CJI Chandrachud said, “I am not saying you adopt central rules. But you must give some child care leave.”
“The state of Himachal Pradesh must be directed to consider the entire aspect of the grant of child care leave to mothers, including making special provisions consistent with the Right to Persons With Disabilities (RPWD) Act to mothers with children with special needs,” the bench said. Further, the court asked the state chief secretary to constitute a committee with a state commissioner appointed under the RPWD Act, secretary of Women and Child Department and secretary of Social Welfare Department to look into all aspects of the matter.
What’s the case?
A woman with a son suffering from Osteogenesis Imperfecta, approached the state to seek childcare leave as she exhausted all her leaves due to the continuous treatment and several surgeries. Her application was declined by the state government on account of non-adoption of the provision of child care leave, as provided under Rule 43-C of the Central Civil Services (Leave) Rules, 1972.
Next, she approached the High Court but it too dismissed her plea on April 23, 2021, on the ground that the state has not adopted Rule 43 (C). Going against the High Court’s verdict, she reached the Supreme Court and filed a plea through advocate Pragati Neekhra.
On September 15, 2022, the Supreme Court issued a notice taking up the plea and the commissioner under the RPWD Act was asked to place on record the policies or directions with regard to grant of leave to parents of children covered by statute. The commission in reply said that there is no such policy formulated.
On Monday, the court provided liberty to the woman to make the Centre a party to the proceedings and asked Additional Solicitor General Aishwarya Bhati to assist in the matter. It said the report of the state committee shall be prepared before July 31. On the request of the appellant, the bench also directed: “In the meantime, pending further orders, application by the petitioner for the grant of special leave… be considered by the authorities”.