New Delhi: The Supreme Court on Monday ruled that denying child care leave to working mothers of disabled children violates the constitutional mandate for equal participation of women in the workforce, while stressing that this participation is not just a matter of privilege but constitutional entitlement.
The apex court stressed that the provision of Child-Care Leaves (CCL) to women subserves an important constitutional object, and denying the same to mothers of children with disabilities would violate the constitutional duty to ensure equal women participation in the workforce.
A bench led by Chief Justice of India D Y Chandrachud and comprising Justice J B Pardiwala was hearing a plea by a woman, a professor in a state university, against the Himachal Pradesh High Court order, which dismissed her plea seeking Child Care Leave in terms of Rule 43-C of Central Civil Service (Leave) Rules, 1972.
The woman's son suffers from a genetic disorder which required him to go through numerous surgeries, resulting in his mother exhausting all her sanctioned leaves. Advocate Pragati Neekhra represented the petitioner before the court.
During the hearing, the CJI asked the counsel representing the Himachal Pradesh government whether they give any child care in Himachal Pradesh, and in the event of a child falling sick, does the mother have to resign?
“The state must give child care leave," said the CJI. The state government counsel requested the court to give him some time to seek instructions in the matter. The petitioner’s counsel argued that she is also taking shield under the Disability Act and under Section 80, powers are given to the state commissioner to recommend and that power can be exercised.
The apex court noted that the 14-year-old son of the petitioner Shalini Dharmani, an assistant professor in the Department of Geography at a government college, suffers from rare genetic disorder, Osteogenesis Imperfecta, and has undergone several surgeries since birth. The court said the petitioner's son requires continuous treatment and surgical intervention to survive and lead a normal life.
The CJI noted that due to the treatment of her son, the petitioner has exhausted all her sanctioned leaves and the Rule 43-C of the Central Civil Service (Leave) Rules, 1972, provides for grant of child care leave.
“By an office memorandum March 3, 2010, the Union government permit child care leave for women employees for differently abled children up to the age of 22 years (instead of 18 years)….the petitioner was informed…..the Himachal Pradesh has not adopted the provision for child care leave, such leave cannot be sanctioned to her”, said the CJI.
The bench noted that she made a representation in December 2018, and later moved the high court seeking a direction to the adoption of rule in connection with grant of child care leave. The high court dismissed the woman’s plea on April 23, 2021, on the ground that rule 43 (C) has not been adopted.
“The provision for child care leave was deleted by Himachal Pradesh. We are of the considered view that the petition raises a serious matter of concern, the petitioner has relied on provisions of Rights of Persons with Disability Act, 2016 (RPWA)”, noted the bench.
The CJI said the participation of women in the work force is not just a matter of privilege but constitutional entitlement by Article 15 of the Constitution. "State cannot be oblivious to the special concerns which arise in the case of women who are part of the workforce," the CJI added.
He stressed that the provision of child care leave to women subserves an important constitutional object of ensuring that women are not deprived of their due participation, and due to the absence of provision regarding the child care the mother may be constrained to leave the workforce. “The policies of the state must be synchronous with constitutional protection and safeguards”, said the bench.
The bench directed the Himachal Pradesh government to reconsider rules for leaves for mothers who are bringing up children with special needs, and also directed the formation of a committee chaired by the Chief Secretary of the state to look into all aspects of the matter.
The committee shall consist of state commissioner, appointed under RPWD Act, secretary Women and Child Department, secretary of Social Welfare Department, the bench said, adding the report of the committee should be placed before competent authorities so that a policy decision is taken expeditiously.
The bench impleaded the central government as a party to the matter and sought its response, and also asked additional solicitor general Aishwarya Bhati to assist it in the matter. The apex court directed that the report of the committee shall be prepared by July and listed the matter for further hearing in August 2024.
The Petitioner’s counsel requested the court that her client’s application for leaves should be considered by the concerned authority. The bench directed that the application by the petitioner for grant of special leave shall be considered by the competent authority.
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