Courts have often compassionately ruled in favour of childcare leave, a constitutional right of working mothers. This can be a precedent for reforms to allow women to fully participate in the workforce
In a landmark decision, the Supreme Court made it clear that ensuring equal opportunities for women at the workplace is not just a choice, but a constitutional duty. This ruling shed light on the crucial need for childcare leave, particularly for mothers with children facing disabilities.
The petitioner argued before the bench of Chief Justice of India DY Chandrachud and Justice JB Pardiwala that the Himachal Pradesh government had refused her request for childcare leave so that she could care for her son who had multiple surgeries and was suffering from Osteogenesis Imperfecta, a rare genetic disorder.
However, her application was denied because the state had not adopted the provision of childcare leave as stipulated by Rule 43-C of the Central Civil Services (Leave) Rules, 1972.
The woman then moved the High Court, which dismissed her plea on April 23, 2021, on the grounds that the state has not adopted Rule 43-C, against which she appealed to the Supreme Court. She argued that the state’s selective adoption of regulations went against the spirit of the welfare state concept, the Constitution and India’s obligations under numerous international accords on women’s and children’s rights.
The apex court bench emphasised the importance of women’s involvement in the workforce and emphasised Article 15 of the Constitution, which protects this right. It also emphasised that the state needs to provide for the special requirements of working women, such as childcare leave, in order to be a model employer. The Supreme Court stressed that childcare leave is essential and urged the state to offer such facilities either on its own or in accordance with central rules. To help with this issue, the Court also approved the centre’s involvement in the proceedings.
Further, in order to promote policy alignment, the Court ordered the establishment of a committee made up of important parties to investigate the provision of childcare leave to mothers, particularly those who have children with exceptional needs. The report of the committee is required to immediately inform policy choices. In addition, the Court ordered that the petitioner’s request for exceptional leave be given prompt consideration, while the state committee’s report has to be submitted by July 31.
In a similar case, Revati Anil Kulkarni vs State of Maharashtra, the Maharashtra Administrative Tribunal ruled that a woman was denied maternity leave due to her probation, stating that being a mother is a right and probation should not prevent her from doing so. The Tribunal also emphasised that an adequate period is needed to assess employee performance and no concession should be given to female employees on maternity leave. The Tribunal suggested using different methods of computation to determine the period of assessment, allowing the establishment a sufficient period for performance assessment and protecting the rights of the mother to be with her child. The Court quashed the order and granted the applicant maternity and childcare leave, stating she completed her probation on July 24, 2014.
In another such case, Deepika Singh vs Central Administrative Services, the Supreme Court was hearing a case where the maternity leave request of a woman working as nursing officer in the Post Graduate Institute of Medical Education and Research, Chandigarh, was rejected on the grounds that she had two children born from her first marriage and that she had availed of childcare leave earlier for one of them, and hence, her first biological child was her third child. The first wife of her husband had died, with whom he had two children.
The maternity leave for the child borne by her, considered as her third child, was found to be inadmissible in terms in terms of Rule 43 of the Central Civil Services (Leave) Rules 1972. Hence, her leave was cumulatively treated as earned leave, medical leave, half pay leave and extraordinary leave. This decision was upheld by the Punjab and Haryana High Court. Later on, the Supreme Court ruled that the appellant’s family structure had changed when she took on parental roles for her spouse’s biological children. The Court emphasised that courts should give effect to the law’s purpose rather than prevent its application. It emphasised that maternity leave under Rules of 1972 is intended to facilitate women’s continued work, as many women would be forced to give up work due to social circumstances.
The Court ruled that a woman is entitled to 180 days of maternity leave and childcare leave for her two eldest surviving children. The Court clarified that the appellant’s spouse’s two biological children from his first marriage did not affect her entitlement to maternity leave for her sole biological child. It also considered the compassionate view of authorities on the matter.
The Court emphasised the disproportionate burden of childcare work on women due to gendered roles and societal expectations. Women in India spend more time on unpaid work, including childcare. Support for care work, through benefits like maternity, paternity, or childcare leave, is essential. The Court ruled that childcare leave cannot disentitle the appellant to maternity leave. It, hence, held that the appellant was entitled to the grant of maternity leave and directed that the benefits to her should be released to her within two months from the date of the order.
In another such case, the Punjab and Haryana High Court held that a woman employee can’t be denied leave if shortage of staff in the department is due to the government’s fault. These orders were on a plea filed by a government doctor in Haryana who was denied childcare leave on the grounds that there was insufficient number of medical specialists in the health department. The Court found that the government was at fault in failing to fill up vacancies of medical specialists and the employees cannot suffer for it.
In Kakali Ghosh vs Chief Secretary, Andaman and Nicobar Administration, and Other, the only question raised was whether a woman can take uninterrupted childcare leave for a total of 730 days for her son’s (below the age of 18 years) board examination. This got rejected without any reasonable explanation. When this case reached the appellate court, it was held that due to the lack of explanation as to why the leave was refused, it held that a woman can take uninterrupted leave of 730 days.
Childcare leave for fathers is also there as they too have certain rights under the Central Civil Services Leave Rules, 1972. Both the father and mother collectively have responsibility in the growth of a child. Therefore, a father should also be entitled with leave for proper care of the newborn child.
In Chander Mohan Jain vs NK Bagrodia Public School, when a male employee applied for paternity leave it was rejected and his salary got debited for being absent for taking care of his wife and newborn baby. The issue that arose was whether he was entitled to paternity leave and a refund of his salary or not. Here, the Court granted relief to private sector employees also and held that the man was entitled to the leave and his salary should be duly refunded.
The Supreme Court’s affirmation of childcare leave as a constitutional right not only validates the challenges faced by working women, but also sets a precedent for future policies. This should show the way for comprehensive policy reforms that address both the legal and societal barriers preventing women from fully participating in the workforce. By recognising and supporting the dual roles that women often balance, India can make significant strides towards gender equality, economic growth and social development.
—By Abhilash Kumar Singh and India Legal Bureau