[Maternity Leave] Infant's Claim On Mother's Time As A Fundamental Right May Encroach Upon Her Right To Privacy & Agency: Amicus Tells Delhi HC

In relation to a four months old toddler's plea seeking enforcement of his right to maternal care, the Amicus Curiae in the matter has told the Delhi High Court that the infant's 'unselfconscious claim' on his mother's time as a fundamental right may encroach upon the her right to privacy and agency.

The development came after Advocate Shahrukh Alam, amicus curiae in the case, advanced her submissions in a plea moved by the toddler whose mother was denied maternity leave by the North Delhi Municipal Corporation.

The Petitioner had asserted his right to care by his parents invoking Articles 14 and 21 of the Constitution of India. The NDMC on the other hand based its decision on Rule 43(1) of Central Civil Services (Leave) Rules, 1972 which provides that a female government servant with less than two surviving children may be granted maternity leave for a period of 180 days, by the competent authority. Since the Petitioner is the third child, his mother was denied maternity leave.

Submitting the preliminary note in the matter, the amicus curiae has informed the Court that the way the issue has been framed by the petitioner, it seeks to limit the agency of the mother especially in view of the jurisprudence laid down in Justice KS Puttuswamy vs. Union of India.

The Court has been further informed that the plea frames 'maternity leave' as primarily a duty owed to the child, and a corresponding fundamental right that vests in the child, to maternal time and care.

"On the other hand, 'maternity leave' was conceived as a right with the woman at the centre of it: it sought to enable women to combine their reproductive and productive roles successfully, and to prevent unequal treatment at work due to their reproductive role," the submissions read.

The Amicus also added that the issue of the Petitioner's right to life, to the extent it is linked to his need to be cared for, must be considered as a joint responsibility of both his parents.

"Gendered labour policy aims to protect working women during their pregnancy and recovery from child birth, by securing for them maternity leave. However, it is 'parental leave', a relatively long-term leave available to either or both parents, for the sole purpose of taking care of an infant, or of a young child, usually following the maternity or paternity leave period. Parental leave is not included in any ILO Convention. However, both Recommendation No. 191 (accompanying Convention No. 183 on maternity protection) and Recommendation No. 165 (accompanying the Workers with Family Responsibilities Convention, 1981, No. 156) contain provisions on parental leave," the submissions add.

The amicus curiae also added that the Respondents must undertake to provide hygienic and private nursing spaces and that while the Act encourages nursing at the workplace, there is gap in terms of provision of crèches, which are only available to larger establishments.

The Amicus Curiae further submitted that the World Health Organization advises an adequate and hygienic space for child-care at work places and that this need is essential in the initial six months of a child.

At the outset, the Court put a query to the counsel appearing for the North Delhi Municipal Corporation as to whether such facility exists at the mother's work place, to which the answer was given as affirmative. However, time was sought to obtain instructions apropos its hygienic condition and to file photographs of the same, supported by an affidavit.

The amicus curiae also drew the court's attention to adequate facilities being made available the world over to working mothers in public spaces. She submitted that in the last two years, working from home through the internet or video-conferencing, has become an acceptable mode of rendering services and this necessity-based innovation has become a part of people's lives and is here to stay.

Furthermore, she submitted that on case to case basis, it could well be examined by the employer whether services could be rendered through the internet/video-conferencing for the period for which the mother seeks maternity leave.

Alam also emphasised that the rationale prompting the grant of maternity leave needs to be borne in mind, that this is not child rights' issue alone but has to be seen on a larger canvass apropos rights of working mothers.

Accordingly, the Court granted two weeks tome each for filing of Counter affidavits and rejoinder in the matter.

The matter will now be heard on July 14 by a division bench comprising of Justice Najmi Waziri and Justice Swarna Kanta Sharma.

Case Title: XXXXXX versus NORTH DELHI MUNICIPAL CORPORATION & ORS.

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