Facts: The Petitioner, an assistant professor in the Government College, moved the Himachal HC to get a childcare leave since her son had Osteogenesis Imperfecta, a rare genetic disease that necessitated multiple surgeries. Her request was turned down as she had used up all authorized leave for her son’s ongoing care since the state government had not yet put Rule 43-C of the Central Civil Services (Leave) Rules, 1972—which deals with childcare leave—into effect. She appealed to the Supreme Court after the High Court rejected her case on April 23, 2021, citing the state’s non-adoption of the rule. She claimed in her appeal that the state’s selective rulemaking runs counter to the Constitution, international conventions protecting women’s and children’s rights, and welfare state ideals.

Contention of the Petitioner: Petitioner argued that the state’s selective adoption of regulations is against the spirit of the welfare state concept, the Constitution, and India’s obligations under several international accords on the rights of women and children. In response to the plea, the Supreme Court sent notice to the state on September 15, 2022, and the commissioner was requested to record the rules or instructions regarding the granting of leave to parents of children who are protected by statute under the RPWD Act.

Contention of the Respondent: The Himachal State Commissioner responded by stating that no such directive or policy had been created.

Court’s Observation: CJI stated that he was not pressing for the creation of government regulations, he did recommend that some kind of leave for childcare be offered.

It stated “Participation of women in the workforce is a matter not just of privilege but a constitutional entitlement protected by Article 15 of the Constitution. The state as a model employer cannot be oblivious to the special concerns which arise in the case of women who are part of the workforce….. The provision of childcare leave to women sub-serves an important constitutional objective of ensuring that women are not deprived of their due participation as members of the workforce. Otherwise, in the absence of provision for childcare leave, a mother may be constrained to leave the workforce”.

The court stressed the significance of making sure state regulations are in line with constitutional rights while acknowledging that the petition does touch on some policy issues. It recommended that the state of Himachal Pradesh be directed to conduct a comprehensive investigation into the matter of allowing mothers to take time off from work for childcare. This investigation should cover the establishment of particular provisions that comply with the Right to Persons with Disabilities (RPWD) Act for mothers whose children have special needs.

The SC asked the State Chief Secretary to constitute a committee consisting of the State commissioner designated under the RPWD Act, the Secretary of the Women and Child Department, and the secretary of the Social Welfare Department to look into all aspects of the matter. It required that the panel’s conclusions be forwarded to the relevant authorities in order to expedite the formulation of a policy.

The Petitioner was allowed to include the Centre in the proceedings by the Court, and it asked Additional Solicitor General to help. The deadline for preparing the state committee’s report was by July 2024. The bench further directed the authorities to take the petitioner’s request for special leave into consideration as they awaited further directives.

-By Adv. Deeksha Rai Legal Associate