Child Care Leave:

A Constitutional Mandate or Not?

Shivika Sharma
Shivika Sharma

Published on: May 6, 2024

Trishaljeet Singh
Trishaljeet Singh

Updated on: May 7, 2024

(10 Ratings)
1149

Background

  1. The Appellant holds the position of Assistant Professor in the Geography Department at Government College, Nalagarh, Himachal Pradesh.
  2. The Appellant is the primary caregiver for her son, who has a disability necessitating frequent surgeries and ongoing care. Her son is afflicted with osteogenesis imperfecta, commonly known as brittle bone disease, a rare genetic condition.
  3. The Appellant has utilized all available leave options and has been denied additional leave by the Himachal Pradesh Government, citing a lack of provisions similar to Section 43-C of the Central Civil Service (Leave) Rules, permitting employed women to avail themselves of child care leave for up to 730 days until their child with disabilities reaches 22 years of age, or until their non-disabled child reaches 18 years of age.
  4. A legal challenge was initiated against the Himachal Pradesh High Court’s decision, which rejected the request for additional child care leave. The High Court ruled that since the Himachal Pradesh State Regulations do not encompass the specific child care leave provisions outlined in the Central Civil Service (Leave) Rules of 1972, the petition lacks merit.

Issue before the Supreme Court

Does the refusal to grant Child Care Leave (CCL) to a female employee caring for a child with disabilities constitute a discretionary act of privilege or a transgression against the state’s fundamental obligation?

Supreme Court’s Pronouncements

  1. The Supreme Court referred “Rule 43-C of the Central Civil Service (Leave) Rules 1972, and also referred the order 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 22 years (instead and in place of 18 years) subject to the conditions stipulated by the government in this regard from time to time”.
  2. The Supreme Court adjudicated that the provision of Child Care Leave (CCL) to female employees is not merely a privilege but a fundamental duty incumbent upon the state, essential to ensuring equal opportunities within the workforce. The Court emphasized that in the absence of CCL, mothers may be compelled to resign from their employment to fulfil child care responsibilities. Supreme Court observed, “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).”
  3. The Supreme Court has mandated the Government of Himachal Pradesh to undertake a comprehensive review of its policies regarding Child Care Leave to make it consistent with the Rights of Persons with Disabilities Act, 2016. This reassessment is to be conducted with the objective of facilitating access to CCL for female employees who are the primary caregivers of children requiring special care.
  4. Additionally, the Supreme Court has instructed the Government to expedite the formation of a committee, to be presided over by the Chief Secretary of Himachal Pradesh. This Committee is tasked with examining the aforementioned concerns and is expected to present its findings in a report by the deadline of July 31st.

Question of General Importance

Is the provision of Child Care Leave (CCL) inclusive of the statutorily mandated maternity leave entitlements?

Child Care Leave (CCL) is granted in addition to the statutory maternity leave entitlement of 180 days as per the Maternity Benefit Act. Furthermore, CCL may be clubbed with any other category of leave available to the female employees.

Conclusion

The Supreme Court mandated that the provision of Child Care Leave is integral to a mother’s fundamental right to employment. In recognition of the urgent situation pertaining to Ms. Dharmani, the Supreme Court recommended that the Himachal Pradesh State Authorities to grant on the provision of exceptional leave for her, until a final decision is made. The Court further noted that it is incumbent upon the state to ensure equal opportunities for women, taking into account their unique circumstances. Moreover, the Court opined that state policies must be consonant with the fundamental rights enshrined in the Constitution.

[Shalini Dharmani v. The State of Himachal Pradesh & Ors.]

Disclaimer

The information provided in this article is intended for general informational purposes only and should not be construed as legal advice. The content of this article is not intended to create and receipt of it does not constitute any relationship. Readers should not act upon this information without seeking professional legal counsel.

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