Unconstitutional to deny women employees access to maternity leave and two years of childcare leave.
The Indian Supreme Court's historic decision has ushered in a new chapter in the history of working mothers where a petitioner is an assistant professor of the Department of Geography at Government College, Nalagarh Himachal Pradesh Petitioner, whose son has Osteogenesis Imperfecta, a rare genetic disorder due to which her 14-year-old son who had multiple procedures performed since birth. For the boy to have a normal life and to survive, he needed ongoing medical care and surgery. The petitioner had used up all of her authorized leave because of her son's treatment. and constant attention has approached the court. Her application for leave was denied because the state government had not adopted the provision of child care leave, as stipulated by Rule 43-C of the Central Civil Services (Leave) Rules, 1972.
The Himachal Pradesh government had refused to provide her with childcare leave, citing the lack of a certain clause in the state's service regulations that is comparable to section 43-C of the Central Civil Services (Leave) Regulations. On April 23, 2021, the High Court dismissed the writ petition, citing the state of HP's deletion of rule 43-C.
43-C. Child Care Leave. -
(1) A woman Government servant having minor children below the age of eighteen years and who has no earned leave at her credit, may be granted child care leave by an authority competent to grant leave, for a maximum period of two years, i.e., 730 days during the entire service for taking care of up to two children whether for rearing or to look after any of their needs like examination, sickness, etc.
(2) During the period of child care leave, she shall be paid a leave salary equal to the pay drawn immediately before proceeding on leave.
(3) Childcare leave may be combined with Leave of any other kind.
(4) Notwithstanding the requirement of production of medical certificate contained in sub-rule (1) of rule 30 or sub-rule (1) of rule 31, leave of the kind due and admissible (including commuted leave not exceeding 60 days and leave not due) up to a maximum of one year, if applied for, be granted in continuation with child care leave granted under sub-rule (1).
(5) Childcare leave may be availed of in more than one spell.
(6) Child care leave shall not be debited against the leave account.
The petitioner has also brought up a grave cause for worry since the petitioner also made use of the Rights of Persons with Disabilities Act of 2016 provisions.
According to the Supreme Court, working women are entitled to two years of paid leave in addition to 180 days of maternity leave under the constitution because this protects their right to full participation in the workforce, which is a significant constitutional goal.
"We are conscious of the fact that the petition does trench on certain aspects of policy. Equally, the policies of the State have to be consistent and must be synchronized with constitutional protections and safeguards," the bench said.
However, the bench felt, "We are of the view that the State of Himachal Pradesh must be directed to reconsider the entire aspect of the grant of Child Care Leave to mothers, including making special provisions consistent with the objects and purpose of the RPWD Act to mothers who are bringing up children of special needs."
"In the meantime, pending further orders, the application by the petitioner for the grant of special leave under Rule 32 of the CCS (Leave) Rules shall be favorably considered by the competent authorities," the bench ordered, fixing the matter for consideration on August 5, 2024.
Also, a mother can be forced to leave the employment if there is no provision for the issuance of Child Care Leave, according to a bench made up of Chief Justice of India D Y Chandrachud and Justice J B Pardiwala. The court stated that a mother with a kid who has special needs is subject to this consideration a fortiori.
The bench stated, "Women's employment is a constitutional mandate, not a privilege. We are disappointed that Himachal Pradesh does not have this provision." Encouraging women to enter the workforce is a key constitutional goal that is furthered by childcare leave. If not, mothers will be forced to resign from their careers in order to care for their kids throughout very important life stages."
CONCLUSION: In a historic decision, the Supreme Court ruled that women workers have a constitutional right to two years of paid childcare leave in addition to required maternity leave. Women are forced to retire if they are denied such leave, the court, led by Chief Justice D Y Chandrachud, stressed. Shalini Dharmani, an assistant professor from Himachal Pradesh whose child needs round-the-clock care, made a request, and the judgment was made. The state was instructed by the court to form a policy review committee.