Supreme Court says Child Care Leave and Maternity Leave are constitutional right of Women Employees

The Supreme Court made a strong statement on Monday, emphasizing the constitutional requirement for a two-year childcare leave in addition to the mandatory 180-day maternity leave for women employees. The court equated the denial of such leave to forcing women to give up their jobs. Chief Justice D Y Chandrachud and Justice J B Pardiwala expressed this viewpoint in response to a petition filed by Shalini Dharmani, an assistant professor in a government college in Himachal Pradesh. Dharmani, whose child has a rare genetic disorder requiring multiple surgeries and constant care, raised concerns about her exhausted leaves and the refusal of the Himachal Pradesh government to grant her childcare leave.

Dharmani’s counsel, Pragati Neekhra, informed the court that the Himachal Pradesh government denied her childcare leave because the state service rules did not include a provision similar to Section 43-C of the Central Civil Service (Leave) Rules. This section, modified in 2010, allows women employees to take childcare leave of 730 days until their disabled children reach 22 years of age, while women with normal children can avail it until their kids reach 18 years of age.

Constitutional Mandate for Women’s Workforce Participation

The bench, led by the Chief Justice, expressed discontent with the absence of such a provision in Himachal Pradesh. They emphasized that the participation of women in the workforce is not a privilege but a constitutional mandate. Childcare leave serves an important constitutional objective of enabling women to be part of the workforce. Without this provision, mothers are left with no choice but to resign from their jobs to care for their children during critical phases of their lives.

In response to the petitioner’s case, the bench directed the Himachal Pradesh government to immediately establish a high-level committee chaired by the chief secretary. This committee should include secretaries from the social welfare and women and child welfare departments. The committee’s objective is to thoroughly reconsider the issue of childcare leave for women employees. The court also instructed the committee to engage with relevant Union ministries and submit a report with appropriate policy recommendations on incorporating childcare leave into the state service rules by July 31. In the meantime, the court requested the Himachal Pradesh government to consider granting extraordinary leave to Shalini Dharmani so she can attend to her son who suffers from a rare genetic disorder called osteogenesis imperfecta (brittle bone disease).

Case Details : SHALINI DHARMANI vs. THE STATE OF HIMACHAL PRADESH SLP(C) No. 016864 – / 2021