Title: Shalini Dharmani v. State of Himachal Pradesh & Others, 2024
Petitioner: Shalini Dharmani
Respondents: State of Himachal Pradesh and Others
Court: Supreme Court of India
Date of Judgment: March 11, 2024
Citation: (2024) SCC OnLine SC 363
Bench: Justice B.V. Nagarathna and Justice Ujjal Bhuyan
ABSTRACT
In Shalini Dharmani v. State of Himachal Pradesh the Supreme Court has set in motion a significant development in Indian constitutional law, particularly at the intersection of gender, disability, and employment in the public sector. This is the first time the Court has described Child Care Leave (CCL) for the caregivers of children with disabilities as a constitutional right rather than simply an administrative right. By anchoring CCL in the fundamental rights of equality and The Right to Life with Dignity, the Court adopted a substantive equality lens to the leave issue, and reinforced the onus within this statutory framework for the State as a model employer. The Shalini Dharmani decision sets forth a starting point for systemic change and reform, and illustrates the parameters of new forms of inclusive modes of governance in India.
Keywords: Child Care Leave, Gender Justice, Disability Rights, Constitutional Equality, Substantive Equality.
INTRODUCTION
The Indian Constitution emphasizes to achieve substantial rather than only formal equality. The Constitution requires the State to eliminate the existing barriers facing marginalized groups, specifically women and those with disabilities.It is important to highlight the lived experiences of women professionals who are primary caregivers for children with disabilities, which is frequently absent or completely ignored in workplace policy and law, to pass the case through a feminist approach.
This case drew the Supreme Court’s attention to the absence of gender-sensitive and disability-inclusive employment regimes at the State level. The Court reconciled the entitlements under Articles 14, 15, 19(1) (g), and 21 of the constitution with the provisions of the Rights of Persons with Disabilities Act, 2016 (“RPwD Act”) and held that the State was obliged to provide institutional support for caregiving, under a constitutional obligation.
PROCEDURAL HISTORY & FACTS
Shalini Dharmani is an Assistant Professor in the service of the Himachal Pradesh Government and a primary caregiver for her teenage child (a son), who has Osteogenesis Imperfecta, which is a very rare and severe genetic disorder.After exhausting all of her medical leave and other leaves, she applied for Child Care Leave (CCL) in order to continue as a caregiver for her son. However, the State authorities rejected Shalini Dharmani’s application and indicated that there is no Child Care Leave policy or CCL for government employees in Himachal Pradesh. Dharmani applied to the High Court, which declined to intervene in the matter, after which she applied to the Supreme Court on the basis of violation of her constitutional and statutory rights under the Rights of Persons with Disabilities Act, 2016 (RPwD Act).
ISSUES RAISED
- Is the denial of Child Care Leave to a mother of a disabled child discrimination, that is an infringement of her constitutional protections contained in Articles 14, 15, 19(1)(g) and 21?
- Do the obligations of the State under the RPwD Act (Rights of Persons with Disabilities Act), 2016; require it to provide institutional mechanisms in the form of CCL (Child Care Leave) for caregivers of persons with disabilities?
CONTENTIONS
- Petitioner:
Shalini Dharmani argued that the refusal to grant CCL (Child Care Leave) was discriminatory, and in violation of her rights to equality, non-discrimination, and dignity under Articles 14, 15, and 21. She argued that no consideration has been given in employment policies to the care giving responsibilities that overwhelmingly fall on women, and there has been “systemic exclusion” of caregivers, which she argued amounts to structural exclusion. She also referred to the Rights of Persons with Disabilities Act, (RPwD Act), 2016 which requires the provision of special measures for the benefit of persons with disabilities as well as provisions which indirectly apply to caregivers.
- State:
The State of Himachal Pradesh responded that it did not have a statutory duty to grant CCL (Child Care Leave) in its service rules.The State characterized CCL as policy matter, and not an enforceable right. The State also warned that judicial review should not encroach into the field of administration and create a reviewable right.
RATIONALE
Promulgating the principle of transformative constitutionalism, the Supreme Court held that “the right to equality is not just formal equality, it requires positive action to redress a history of disadvantages.”
The Court has also recognized working mothers of disabled children as a unique class meriting special accommodations, consistent with substantive equality. In rejecting the State’s assertion that caregiving is a personal/private matter, the Court stated:
“The disproportionate burden of caregiving on women within a patriarchal paradigm is a systemic disadvantage that must be remedied in the Constitution.”
The Court concluded that the refusal to grant CCL (Child Care Leave) placed women at a particular disadvantage in the professional sphere, in breach of Articles 14 and 15.The Court went later on to interpret the RPwD (Rights of Persons with Disabilities Act),2016 to provide for the rights of caregivers in a more pervasive understanding of equality and non-discrimination for persons with disabilities.
The Court recognized that, as a model employer, the State is required to use compassion and inclusion in their employment policies, which reinforces constitutional morality. The Court found that requiring a mother to choose between looking after her child and their profession “impacts the very essence of her right to life with dignity, under Article 21.”
The Court ordered the establishment of a high-level committee tasked with framing a uniform CCL (Child Care Leave) policy for caregivers of disabled dependents in all State departments.
DEFECTS OF LAW
The judgement reveals a considerable void both administratively and by way of statutes:
- First, State service rules are not uniform in recognizing caregiving needs and there are variations between states. Himachal Pradesh’s absence of CCL (Child Care Leave) is inconsistent with provisions provided by the Central Government.
- Second, while the Rights of Persons with Disabilities Act, 2016 (RPwD Act) recognizes the rights of persons with disabilities, it does not discuss the legal status or entitlement of caregivers.This gap is important given that it renders enforcement weaker and causes caregivers to rely on judicial interpretation not legislative clarity.
IMPACT OF THE JUDGEMENT
The Shalini Dharmani decision creates a landmark precedent in three primary ways. First, it judicially recognizes Child Care Leave as a constitutional right and incorporates gender sensitivity into public employment law. It will most likely mean that all states will put into place reforms, causing state governments to review upon employment service rules regulatory law and employability rules, to be compliant with the rules of the constitution.
Second, the decision elevates intersectional discrimination to a constitutional identity and makes it viable to have consideration of what are traditionally omitted communities. Women, and caregivers of children with disabilities face cumulative discrimination as a function of their social identity. The Court’s acknowledgment of this layered oppression signals a turn towards a more robust and intersectional definition of equality in Indian law.
Third, the decision bolsters the power of the judiciary to interpreted silence in law as it aligns with the norms of constitutional value. In the absence of a statutory pathway for caregiver’s rights, the Court has read from the RPwD Act (Rights of Persons with Disabilities Act) a right that stems from constitutional imperative rather than simple policy expedience.
INFERENCE
The Supreme Court’s ruling in Shalini Dharmani is a progressive and transformative step towards substantive equality, gender justice, and protection of the rights of persons with disabilities. The ruling reflects the constitutional obligation of the State to enable women to participate in work, and to provide adequate support for caregivers, particularly mothers of children with special needs.The ruling will likely set a standard for the interpretation of state obligations from the Constitution and the Rights of Persons with Disabilities Act, 2016, and promote further reforms.
~ AUTHOR: Jiya Sarkar, 3rd Year, BBA.LLB (H), Sister Nivedita University, Newtown, Kolkata, West Bengal.