Why SC Remarked Denying Women Childcare Leave As Unconstitutional

In a remarkable judgement, the Supreme Court said that the Indian Constitution has entitled women to participate in the workforce and denying women child care leave violates this. The court was hearing a plea filed by an assistant professor in the Government College, Nalagarh who stated that the Himachal Pradesh government had denied her child care leave. The woman's child is suffering from a genetic condition Osteogenesis Imperfecta. The court added child care leave strongly applies in the case of women with disabled children. 

 A bench of Chief Justice of India DY Chandrachud and JB 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."

Childcare leaves an important constitutional objective

The bench further said, "The provision of child care leave to women sub-serves an important constitutional objective of ensuring 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." 

The petitioner has a child with special needs. She exhausted all her sanctioned leave to get various surgeries done for her child. When she filed an application for more leave, her application was denied stating that the state government did not adopt the policy of child care leave as provided in Rule 43-C of the Central Civil Services (Leave) Rules, 1972. Then she approached the High Court which also rejected her application on the same ground. 

Then, she filed a plea at the Supreme Court stating that the state's selective adoption of policies affected the welfare of the state, India's Constitution and obligations at the international platforms of women and child rights. 

Considering her plea, the SC immediately issued notice to the state on September 15, 2022 and asked the commissioner under RPWD Act to place the records of the policies followed in the state with regards to childcare leave. In reply, the commissioner said that there are no such policies. CJI Chandrachud said on Monday, “I am not saying you adopt central rules. But you must give some child care leave.”

SC's order to Himachal Pradesh to look into the childcare leave policies

The court said that the petition is based on certain policies and added that the policies of the state must be synchronous with those of the Constitution. The court directed the Himachal Pradesh government to reconsider the entire policies regarding childcare leave and pay special focus to the provisions under the Right to Persons With Disabilities (RPWD) Act to aid women with children who require special needs.

The court has asked the state chief secretary to form a committee which will include the secretary under the RPWD Act, the secretary of the Women and Child Department and the secretary of the Social Welfare Department. The Committee must look into all the aspects of childcare leave. The court directed that the panel's report should be placed before the concerned authorities as soon as possible so that effective decisions can be made. 

The court further asked the woman to follow the rules of the Center and asked Additional Solicitor General Aishwarya Bhati to assist her. The reports of the committee will be submitted before July 31. The court concluded by saying, "In the meantime, pending further orders, application by the petitioner for the grant of special leave… be considered by the authorities”.

Women need not forget their femininity to adjust to the workforce

The case reminds me of recent judgements which quashed sexist laws that kept women away from the workforce. For example, the  Uttrakhand High Court in February struck down a rule of a hospital that considered a pregnant woman "temporarily unfit for job". Moreover, the Supreme Court of India ordered the Center to pay 60 lakh rupees as compensation to a woman who was fired from her position as a military nurse in 1988 after she got married. 

These cases clearly show that even though the doors of the workforce have been opened for women, it is still a male-dominated world. Women still don't have a space of their own where their issues which are completely different from men are valued or addressed. The historically male-dominated workforce expects women to behave like a man to sustain. 

But time is now changing. Women are not just a part of the workforce but are also the leaders of it. There is no need for a woman to lose her femininity to adjust to the workforce. Moreover, men too get married and have children. Why isn't anyone firing them? 

As Simone De Beauvoir rightly said men are humans and so are women. So let's normalise the formulation and application of policies that adhere to the issues of women in the workforce. When women can earn on their own, why should they be dependent on others for basic needs? The Constitution has provided women with rights and freedom. States cannot just randomly pick up laws and leave others behind based on their convenience.   

Views expressed are the author's own.