In a significant verdict, the Delhi High Court recently observed that no one can be compelled to choose between the right to education and right to exercise reproductive autonomy. A single-judge bench of Justice Purushaindra Kumar Kaurav was hearing a petition from a woman who had enrolled in Chaudhary Charan Singh University, Meerut in December 2021 to pursue a two-year Master of Education (M. Ed) regular course. She had petitioned for directions to the University to allow her the benefit of maternity leave, and pursuant to that, grant her relaxation of attendance for completing the course. The petitioner also prayed for directions to the University Grants Commission (UGC) to frame specific rules and regulations for the grant of maternity leave for postgraduate and undergraduate courses.
The petitioner, Renuka, had filed an application for maternity leave before the concerned dean and vice-chancellor of the University, annexing the doctor’s advice along with the prescription. Thereafter, the petitioner received a reply from the dean, stating that her request for maternity leave has been denied.
The petitioner then raised the issue and her grievance before the UGC, but as she did not receive any response, she approached the High Court seeking relief and directions.
The petitioner stated that the UGC in a circular issued in December 2021 had made provisions in the UGC (Minimum Standards and Procedure for Award of M.Phil/Ph.D Degrees) Regulations, 2016, providing for women candidates to avail maternity leave/ child care leave (CCL) once in the entire duration of M.Phil/Ph.D course for up to 240 days. She further stated that the University should also be directed to make the necessary provisions for providing sufficient days of maternity leave/CCL.
The Court, however, said that the circular issued by the UGC will not apply directly to the M. Ed course which is essentially governed by the provisions of the NCTE Act, 1993, and the regulations therein. If the UGC circular is perused, the same clearly indicates that it has been made applicable to the entire duration of M.Phil/Ph.D course and a provision is made for grant of 240 days of maternity leave. The durations of M.Phil/Ph.D and M.Ed courses are distinctly different. The M.Ed course is only for a period of two years in comparison to the M.Phil/Ph.D course, which is for a considerably longer period of time and normally lasts for five to six years. The Court concluded that the UGC circular relied upon by the petitioner will not apply in this case. The Court further said that the only question that requires consideration is whether in the absence of any specific provisions for maternity leave the same can be directed to be favourably considered by the University.
It was no less a person than Dr. B.R. Ambedkar himself, who on September 3, 1949, had moved an amendment to substitute the hitherto existing Entry 26 of List III of the Constitution. The Court noted: “The amended entry, which was adopted by the Constituent Assembly and now forms part of our Constitution reads as under: ‘Welfare of labour including conditions of work, provident funds, employers, liability, workmen’s compensation, invalidity and old age pensions and maternity benefits.”
Similarly Article 42 of the Constitution forming part of the Directive Principles of State Policy provides as under: “Provision for just and humane conditions of work and maternity relief. The State shall make provision for securing just and humane conditions of work and for maternity relief.”
The Supreme Court in Suchita Srivastava vs Chandigarh Admn held that reproductive choices are inherent to a woman’s right to privacy, dignity and bodily integrity which in turn are encompassed under Article 21 of the Constitution of India. The then Chief Justice KG Balakrishnan (speaking for himself and P Sathasivam and BS Chauhan JJ) in paragraph no 11 of the said decision, stated: “… There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth-control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children…”
In KS Puttaswamy (retired) vs Union of India, the Supreme Court in paragraph no 108 held that it is the duty of the State to safeguard the ability of its citizens to take decisions. The Court said: “‘Life’ within the meaning of Article 21 is not confined to the integrity of the physical body. The right comprehends one’s being in its fullest sense. That which facilitates the fulfilment of life is as much within the protection of the guarantee of life.”
The Court also said that the Constitution envisaged an egalitarian society where citizens could exercise their rights, and the society as well as the State would allow the manifestation of their rights. A compromise was then not sought in the Constitutional scheme. The Court observed that the citizens could not be forced to choose between their right to education and their right to exercise reproductive autonomy. A man could well enjoy parenthood while pursuing his higher education, whereas a woman necessarily has to undergo pre- and post pregnancy care. It is not her choice, but the will of nature. “What is, however, left for us to decide is the consequence we would impose upon a woman who bears a child,” the Court said.
The Court observed that the Court as well as society, has two roads that it can tread in such a scenario. It can either follow the bare text of an existing legal provision, be stuck at the bark of words, be blind to the consequences of the law and allow it to take its course. The other pathway is of being sensitive to the person in the dispute, applying the values enshrined in the Constitution and attempting, wherever possible, to accommodate the law falling short of societal development.
The Court further observed that the first path would force a woman to necessarily choose between her right to a higher education and the right of becoming a mother. A woman would then have to either re-engage herself in the activity that she was previously pursuing and was halted by her pregnancy, or would have to remain content with her having been unable to complete her vocation or education.
“Undoubtedly, in exercise of its power under Article 226 of the Constitution of India, this court cannot create a different compartment for the purposes of relaxation of attendance. The applicable regulations which require a specific number of days of attendance are also required to be fulfilled. At the same time, the interests of candidates seeking maternity leave are also required to be catered to. The genuineness of the application submitted by the petitioner is not doubted nor challenged. If the leave as prayed for i.e 59 days is considered under the ‘theory classes’ the petitioner would be fulfilling the 80% attendance criteria in the theory classes. The same would ensure that the right of the petitioner is secured without compromising the standards to be maintained by the educational institution. It is for this reason, the court under the facts of the case deems it appropriate to direct the University to consider the application of the petitioner for the grant of 59 days leave as maternity leave against 80% theory classes,” the Court observed.
On December 16, 2021, the Allahabad High Court had directed Dr APJ Abdul Kalam Technical University in Lucknow to allow a woman student, who was enrolled in the B. Tech programme, to take university examinations, which she was unable to do earlier as she was pregnant at that time. In addition, the Court directed the university to frame the requisite regulations/ordinances, etc., for grant of prenatal/postnatal support and other maternity benefits to expectant and new mothers who were pursuing various courses at the university.
In 2019, it was reported that women students at Government Law College, Ernakulam had emailed 200 postcards to the vice-chancellor (VC) of Mahatma Gandhi University (MG University), urging the VC to sanction maternity leave for students who get married and become pregnant while pursuing the LL.B course. The students pointed out the difficulty in meeting the mandatory 75% attendance rule set by the MG University, as pregnant students require at least two months to recover from childbirth, and are compelled to repeat a year as they cannot meet the attendance requirement.
The Kerala High Court has ruled that a woman enrolled in a professional course may not be given relaxation from the minimum attendance rule on the ground that she was unable to attend classes due to her advanced stage of pregnancy. Unfortunately, the Court, in this case, ruled that the circumstances of the woman are not exceptional (justifying waiver of the attendance rule) as pregnancy is not a “medical condition visited on the petitioner unexpectedly”, and the woman should have adjusted her priorities accordingly. Interestingly, Kannur University (which was the respondent in this case) amended its regulations in 2019 to expressly allow female students in any programme to avail of maternity leave once during the entire duration of the programme and for a period not exceeding six months.
The case for the grant of maternity benefits to students is based on gender equality and equal opportunity for women. Recognising this, the Calicut University in 2013 became the first university in India to grant maternity leave to female students. Specifically, the University amended its MCA course regulations in 2010 to allow long-term leave for maternity reasons and the option to join the subsequent batch. The amendment allowed such students to appear in the end-semester examination as “first chance” instead of “supplementary chance”.
—By Adarsh Kumar and India Legal Bureau