‘Maternity leave is a fundamental human right’: Himachal Pradesh High Court

On June 12, the Himachal Pradesh (HP) High Court held that maternity leave is a fundamental right and the denial of maternity leave is violative of Articles 29 and 39D of the Constitution of India. The court observed that the objective of maternity leave is to “protect the dignity of motherhood” and provide full and healthy maintenance to the mother and her child.

The court’s Division Bench, comprising Justices Tarlok Singh Chauhan and Virender Singh, observed that maternity leave is intended to achieve social justice for women, motherhood and childhood, both require special attention.

The HP government moved the court to challenge the HP Administrative Tribunal’s order, granting the benefit of deemed maternity leave and thereafter consequential benefit of conferment of work charge status on completion of 8 years of service to the respondent.

The respondent, Sita Devi, was engaged on a daily wage basis. In 1996, she was pregnant and availed of a three-month maternity leave. Due to her maternity leave and subsequent delivery, she was unable to meet the minimum annual requirement of 240 days. The tribunal held that the period of maternity leave would be deemed to be of continuous service.

The HP government challenged the tribunal’s order, contending that there was no provision in the department to grant maternity leave to female daily wage workers in 1996. The court replied, “We, however, find no merit in this contention,” rejecting the HP government’s argument.

The court noted that India is a signatory to various international covenants and treaties. The court said that the Universal Declaration on Human Rights (UDHR) set in motion the “universal thinking that human rights are supreme and ought to be preserved at all costs.” The court said, “These were followed by a series of conventions, which reflect the broad international consensus on important issues of global concern.”

The court refers to Article 25(2) of the UDHR, which states, “Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” The court also refers to Article 6 of the UDHR which states, “States Parties recognize that every child has the inherent right to life,” and that the “States Parties shall ensure to the maximum extent possible for survival and development of the child.”

The court also refers to Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and ILO: Maternity Protection Convention, 2000. The court also noted that Article 42 of the Constitution of India states, “the State is required to make provision for securing just and humane conditions of work and for maternity relief.”

Furthermore, the court said, “It was after years of deliberations at National and International level, the right of a woman employee for maternity leave has now been established as supreme by the enactment of the Maternity Benefit Act, 1961.”

The court cited the Supreme Court’s ruling in the Municipal Corporation of Delhi v Female Workers (Muster Roll) & Another (2000), wherein the apex court held that the Maternity Benefit Act, 1961, entitled maternity leave for women engaged on daily wage basis and not only those in regular employment.

The court reproduced excerpts from the Supreme Court’s verdict, wherein it said, “To become a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the work place while carrying a baby in the womb or while rearing up the child after birth.”

The court held that maternity leave is a fundamental human right of the respondent. The court said, “The respondent in the instant case was a daily wage woman employee at the time of advance pregnancy could not have been compelled to undertake hard labour, as it would have been detrimental to not only to her health and safety but also to the child health, safety and growth.”

The court held, “The maternity leave is a fundamental human right of the respondent, which could not have been denied. Therefore, clearly the action of the petitioner is violative of Articles 29 and 39D of the Constitution of India.”