Participation Of Women In Work Force Not A Matter Of Privilege But Constitutional Entitlement: Supreme Court

The Supreme Court has directed the Himachal Pradesh government to constitute a committee chaired by the Chief Secretary of the State to look into the objects and purpose of the Rights of Persons with Disabilities Act 2016 for mothers who are bringing up children with special needs.

The Court was hearing an Appeal filed by Shalini Dharmani, an Assistant Professor at the Department of Geography in Government College, Nalagarh, detailing her plight as the mother of a fourteen-year-old son with a rare genetic disorder known as Osteogenesis Imperfecta. The boy has undergone multiple surgeries since birth and requires ongoing medical treatment and surgical interventions to maintain his health and lead a normal life. As a result of her son's medical needs, the petitioner has utilized all her approved leave allowances. 

The Bench of Chief Justice DY Chandrachud and Justice JB Pardiwala held, "The participation of women in the work force is not a matter of privilege, but a constitutional entitlement protected by Articles 14, 15 and 21 of the Constitution; besides Article 19(1)(g). 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 work force".

The Court noted, "By an Office Memorandum dated 3 March 2010, the Union Government resolved to permit Child Care Leave for women employees with differently abled children up to the age of twenty-two years (instead and in place of eighteen years), subject to the conditions stipulated by the government in this regard from time to time."

After being informed by the Principal of Government College on November 16, 2018 that the State of Himachal Pradesh hadn't adopted provisions for Child Care Leave, the Petitioner took legal action. After making a representation on December 26, 2018, she instituted a Writ Petition before the High Court of Himachal Pradesh under Article 226 of the Constitution seeking a direction for the adoption of Rule 43-C of the CCS (Leave) Rules. The plea was dismissed by the High Court by the impugned order dated 23 April 2021 on the ground that Rule 43-C has been deleted by the State of Himachal Pradesh.

During the course of hearing, the Court noted that it is not in dispute that the provision for Child Care Leave has been deleted by the State of Himachal Pradesh. The Bench noted that the Petitioner has relied on the provisions of the Rights of Persons with Disabilities Act 201. 

"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 work force. The provision of Child Care Leave to women subserves the significant constitutional object of ensuring that women are not deprived of their due participation as members of the work force. Otherwise, in the absence of a provision for the grant of Child Care Leave, a mother may well be constrained to leave the work force," the Court said. 

The Court said, "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 with special needs."

Accordingly, the Court directed that a committee chaired by the Chief Secretary of the State of Himachal Pradesh be constituted to look into all aspects of the matter. The Committee shall consist of the following:

(i) State Commissioner appointed under the RPWD Act;

(ii) Secretary in the Women and Child Development Department; and

(iii) Secretary in the Social Welfare Department.

The Court also directed the committee to engage with the Secretary in the Department of Women and Child Development and Secretary in the Social Welfare Department (Department of Empowerment of Persons with Disabilities) of the Union Government. 

"The report of the Committee shall be placed before the competent authority so that a considered policy decision is taken expeditiously. The report of the Committee shall be prepared by 31 July 2024 and submitted to this Court as well," the Court said in its Order dated April 22. 

"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 Court further directed. The Court scheduled the matter for further hearing on August 5. 

Cause Title: Shalini Dharmani v. State of Himachal Pradesh & Ors. 

Appearance:-

Petitioner: Advocate Pragati Neekhra (AOR)

Respondent: Advocates D.K. Thakur, Tavleen Singh, Bimlesh Kumar Singh, Mohan Lal Sharma (AOR), Sikha Sharma

Click here to read/download the Order