New Delhi: The Supreme Court Monday reprimanded the Himachal Pradesh government for not having a policy on child care leaves (CCL) for working mothers, observing that this violated its constitutional duty to ensure that an equal number of women participated in the workforce.
A two-judges bench led by Chief Justice D.Y. Chandrachud made the observations while hearing an appeal filed by a Himachal Pradesh government employee who was denied leave. The petitioner, Shalini Dharmani, had requested for child care leave to look after her disabled son.
In response to her application, Dharmani was told that Himachal Pradesh had not co-opted rule 43(c) of the Central Civil Services Leave rules of 1972 and, therefore, she was not entitled to avail it.
According to rule 43(c), which is applicable to central government employees, a woman worker is entitled to CCL up to two years till her child turns 18. In case the child is disabled, the leave can be availed till the child turns 22.
Dharmani lost her case before the Himachal Pradesh High Court in April 2021 and thereafter moved the top court.
The bench, also comprising Justice J.B. Pardiwala, highlighted the importance of CCL for working mothers, particularly women with disabled children.
When Dharmani’s counsel, advocate Pragati Neekhra, drew the court’s attention to the absence of CCL policy in the Himachal Pradesh government for women employees, the bench noted: “Child care leaves subserves an important constitutional objective where women are not denied an equal opportunity in the workforce. This may (denial of CCL) compel a mother to leave the workforce and it applies to a mother more who has a child with special needs.”
The bench went on to direct the state to incorporate a CCL policy, similar to central rules, and ensure it was consistent with the provisions of the Rights of Persons with Disabilities Act, 2016 and ordered the state to set up a committee to recommend a framework with special emphasis on women who have children with special needs. The policy must be consistent with the provisions of the Rights of Persons with Disabilities Act (RPWD) 2016, the court said.
“Ultimately, the plea does entrench on areas of policy and areas of state policy must be synchronous with constitutional safeguards. We direct the state of Himachal Pradesh to reconsider CCL to mothers consistent with the RPWD Act for mothers who are bringing up mothers of children with special needs,” the court ordered.
The state’s chief secretary will form the committee and include the state commissioner under the Act, and secretaries of the departments of women and child development and social welfare.
According to the court order, this committee will engage with the secretary of the central government’s Social Welfare Department and prepare a report by 31 July. Notices were also issued to the Centre, with the court asking additional solicitor general Aishwarya Bhati to assist.
“We are of the view that the petition raises a serious matter of concern. The petitioner has raised the Rights of Persons with Disabilities Act. The commissioner has indicated in an affidavit that no policy of CCL has been formulated. Participation of women in the workforce is not a matter of privilege but a constitutional requirement and the state as a model employer cannot be oblivious of this,” the court ruled.
(Edited by Tikli Basu)
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