Court: Supreme Court of India, Court No. 1
Citation: SLPC 16864/2021
Judges: Hon’ble CJI D Y Chandrachud, Hon’ble Justice J.B. Pardiwala
1. Facts
The petitioner in the above case, Shalini Dharmani (further referred to as the petitioner), is an assistant professor at the Department of Geography in Government College, Nalagarh. The petitioner has a 14-year-old son who suffers from a rare genetic disorder called Osteogenesis Imperfecta for which he had to undergo multiple surgeries since his birth. In order to remain healthy, the petitioner’s son needs constant care and attention which the petitioner was giving. Due to this, the petitioner had used up all her leaves. The petitioner had requested for further leave to take care of her son, but on 16th November 2018 she was denied leave by the principal on the reason that the Government of Himachal Pradesh had not adopted legislations of Child care leave.
According to 43-C of the Central Civil Service (Leave) Rules 1972 (CCSL), “A woman Government servant having minor children below the age of eighteen years and who has no earned leave at her credit, may be granted child care leave by an authority competent to grant leave, for a maximum period of two years, i.e., 730 days during the entire service for taking care of up to two children whether for rearing or to look after any of their needs like examination, sickness, etc.” By an Office Memorandum dated 3 March 2010, the union government increased the age from 18 years to 22 years for differently abled children.
The petitioner, after being refused child care leave, issued a writ petition to the high court of Himachal Pradesh under article 226 of the constitution seeking the High court of Himachal Pradesh to adopt rule 43-C of Central Civil Service (Leave) Rules 1972. The High Court denied the writ petition, stating that rule 43-C has been deleted by the State of Himachal Pradesh. On 23rd April 2021, the petitioner filed a Special Leave Petition opposing the dismissal of the Himachal Pradesh High Court, and taking the matter then to the Supreme Court.
2. Issues Raised
1) Whether the State of Himachal Pradesh should grant child care leave to mothers.
2) Whether the Child care leave policy should be made with special highlight on the Rights of Persons with Disabilities Act, 2016.
3) Is a lack of child care policy in workforce a violation of constitutional rights?
4) Whether state administrative reforms can override constitutional policies.
3. Contentions
Petitioner’s Contentions:
1) Lack of Child Care Leave (CCL) – Under rule 43-C of the Central Civil Services (Leave) Rules, 1972, the petitioner asked for additional leaves to take care of her 14 year old son, but was denied as she had exhausted all her regular leaves. She wishes for rule 43-C to be applied in the state of Himachal Pradesh, which had been deleted.
2) Violation of constitutional rights – The petitioner argues that it is her fundamental right under article 19 of the constitution is being violated, as the lack of a child care leave policy is indirectly forcing her to quit her job. She also mentions article 14 (equality before law and equal protection before law), Article 15 (prohibition of discrimination on the basis of religion, race, caste, sex, or place of birth), and Article 21 (right to life and personal liberty). She argues that the provisions of child care are to promote women in workforce, and without an adequate child care leave policy, women are discouraged from working.
3) Non-Compliance with the Rights of Persons with Disabilities Act, 2016 (RPWD Act) – Under section 80 of the RPWD Act, the state commissioner has to comply with schemes and provisions meant for persons with disability. By deleting 43-C of the Central Civil Services (Leave) Rules, 1972, the state of Himachal Pradesh was not complying with the rules set in the RPWD Act.
Respondent’s Contentions:
1) Deletion of rule 43-C – The state argued that since rule 43-C had not been adopted by the state, the petitioner cannot be granted additional leave. This also included the newly made provision of extending the age of the disabled persons from 18 to 22 years of age.
2) Separate existence of State Policy – The state maintained that it was under no obligation to adopt the Child Care Leave policy under the Central Civil Services (Leave) Rules, and that it maintained its own leave policy for its employees. Therefore, the non-application of the Child care policy is not an issue.
4. Rationale
The court strongly rejected the argument made by the state of Himachal Pradesh of the deletion of rule 43-C. The court’s decision heavily focused on the interpretations of article 14, 15, 19, and 21 of the constitution. The court said that the denial of child care leave to the petitioner purely because the state had not adopted the policy violated the petitioner’s fundamental rights, particularly her right to equality, non-discrimination in the workplace, right to live life with dignity, and her right to have a meaningful employment. The court emphasized how the Central Civil Services (Leave) Rules, 1972 was not just an administrative rule, but a necessity for a woman in the workforce. It ensures that she can contribute to the workforce while also ensuring proper care is given to her children.
The court also placed significant emphasis on the Rights of Persons with Disabilities act, 2016. Section 80 of the act mandates the state commissioner to formulate, implement, and support schemes which benefit persons with disabilities, including schemes for parents or guardians for persons with disabilities. The court criticized the government of Himachal Pradesh for not adopting the Child Care Leave policy and disregarding the RPWD act. The Supreme Court made it clear that state administrative policy cannot override constitutional policies.
In addition to constitutional rights, the Court placed significant reliance on the Rights of Persons with Disabilities Act, 2016 (RPWD Act). Section 80 of the Act mandates the State to formulate support schemes for parents or guardians of persons with disabilities. The Court criticized the Himachal Pradesh government for failing to create such schemes and for showing complete disregard for the intent and spirit of the RPWD Act. It made it clear that legislative silence or administrative omission cannot override statutory and constitutional protections. The supreme court also advised the state of Himachal Pradesh to rethink its Child Care leave policy, especially with the context of the RPWD act.
The committee shall include:
i) State Commissioner who is appointed under the RPWD Act
ii) Secretary in the Department of Social Welfare
iii) Secretary in the Department of Women and Child Development.
5. Defects of law
The fact that states can arbitrarily delete certain provisions mentioned by constitutional provisions creates unequal and inconsistent opportunities in different states. If there is no uniformity regarding constitutional provisions amongst the states, it undermines the fundamental rights under article 14 and 15, which are the right to equality and non-discrimination.
In the Rights of Persons with Disabilities Act, 2016, there is no concrete provision which supports the parents of persons with disabilities, and no clear directions on what is to be done when. This can lead the state to dismiss case such as the petitioner’s as it does not directly affect the person with disability nor is it directly mentioned in the act. The case was a perfect opportunity to address this issue, but it was not mentioned at all and the RPWD act was only used as a basis.
6. Inference
The judgement of Shalini Dharmani v. State of Himachal Pradesh & Ors is a landmark judgement which will have a positive impact in child care leave for he future. The court recognized that child care leave is not just an administrative aspect, but also a constitutional necessity, especially in the cases of mother’s with differently abled children. The petitioner was denied leave solely because of non-adoption in the state she was living in, despite the child care leave mentioned by constitutional policies. The court’s judgement condemning the state is a progressive decision which aids not only working women, but also children with disabilities.
The actions advised by the Supreme Court are not only legally sensible, but also considers the current social realities and need for progression. The judgement is made taking into consideration the problems faced by working mothers, especially those with children with special needs. The court did not dismiss the issue as a mere policy matter, it raised it to a constitutional matter by taking into account the fundamental rights being violated. By also considering section 80 of the Rights of Persons with Disabilities Act, 2016, the court also emphasized that the state cannot disregard its duties to support every citizen in the state, with no discrimination.
The broader implications of this judgement are significant. Firstly, it sets a precedent that welfare provisions and schemes such as Child Care Leave are enforceable rights, and not just optional policies. Secondly, it strengthens the rights of women not only as mothers, but also as an important part of the workforce. It has ensured that the rights of parts of society like women and persons with disabilities are considered when making decisions. Lastly, it has ensured that the policies made aligned to the constitution are aligned in the state and cannot be dismissed or deleted without consideration or adequate reason. This judgement represents a huge step forward in securing the rights of all people, especially the constitutions promise of equality, inclusion, and dignity.
Janhavi Kadam
Kirit P. Mehta School of Law