Pregnancy Shouldn't Burden Women's Aspirations; Public Employment Rules Must Address Difficulties Due To Motherhood: Kerala High Court

In a significant ruling, the Kerala High Court addressed the disadvantages that women may face due to their biological differences from men, in the context of getting opportunities in public employment.  The Court said that the rules relating to public employment must accommodate the concerns of pregnant women and young mothers, so that they don't face discrimination.

The Division Bench comprising Justice A. Muhamed Mustaque and Shoba Annamma Eapen was of the view that, despite standing on equal footing along with men with respect to consideration in the affairs or chances in the public employment, biological differences of women, such as motherhood, may often result in indirect discrimination. 

Remarking that law and regulations ought to address the situational reality of women based on maternity while framing rules and regulations pertaining to public employment, the Bench observed:

"Gender equality has to be realistic. Situational analysis is imperative to bridge the gap of gender differences. If situational reality is not responded to, it may lead to denial of opportunity because of biological factors. Men and women are part of procreation but men have the advantage of having no burden of bearing the womb and will be able to march over women in the public appointments and women will have to face disadvantages of carrying the womb as the period of maternity may operate to her disadvantage. Becoming a mother is not wrong and, pregnancy or motherhood cannot be seen as a burden or clog on the aspiration of women in public employment. The space that addresses the situational reality of a woman is to eliminate adversity and enable women to compete with men on equal parameters. In a substantive approach, the barriers that may come in between the aspirations of women and her motherhood are eliminated". 

It added that there may arise situations that may be encountered by women due to maternity, which could not be responded to by allowing them to have fair opportunities on account of the scheme of time frame that need to be given priority. 

"Balancing individual rights of women and larger interest of public employment is an exercise that has to be carried out by the State or by PSC after adverting to such individual rights of women," it thus said. 

The Court made these seminal statements while dealing with the pleas by two young lady doctors who embraced motherhood while undergoing postgraduation in MD Radiodiagnosis, due to which their compulsory senior residency programme commenced belatedly, and would be completed only by mid-January 2024. 

During this time, the Kerala State Public Service Commission (PSC) invited applications for the post of Assistant Professor in Radiodiagnosis for 9 vacancies, fixing one year of experience as a Senior Resident in Radiodiagnosis in a NMC-recognised Medical College after acquiring post-graduate degree as one of the criteria. 

Since the petitioners would complete their program only by January 2024, they were not able to apply for the post notified as they did not have the prescribed qualifications as on the last date of receipt of the application. 

On receiving no favourable response from either the Government or the Kerala Administrative Tribunal, the present pleas were filed before the High Court. 

The Court had earlier, permitted them to apply for the post before the deadline provisionally through an interim order, pursuant to which they so applied.

Noting that the present case presents a peculiar problem faced by women in the sphere of public employment, the Court was called to answer whether becoming a mother would entail denial of aspirations in public employment and whether women ought to be compelled to choose between career and motherhood.

The Court was of the view that the afore questios would have to be determined on the touchstone of substantive equality which permits the "creation of space, removing barriers that exist in gender attributes and accommodating differences". 

It further went on to remark that reproductive rights of a woman, which include motherhood, are part of the right to life under Article 21 of the Constitution, and that motherhood is integral to the dignity of women.

"Motherhood also produces complex disadvantages. This may result in a gender gap. Non-consideration of disadvantages attributable to motherhood will result in discrimination," it added. 

It thus called upon legal regulations to address situational reality of women based on maternity while framing rules and regulations related to public employment, and for balancing the individual rights of women and larger interest of public employment. 

In the present case, it thus observed that if the last date for submitting experience of the residency programme was extended to those who had been affected by maternity leave, that hurdle faced by women could have been easily addressed. 

The Court clarified that through the above exercise, it was merely attempting to accommodate the claim of such candidates, and not stipulating a time frame for production of such a certificate, as such. 

"Balancing public interest by insisting on production of requisite qualifications in the matter of public employment and accommodating individual's need for recognition of fundamental rights is a balancing act to be done by the State or recruiting agencies. Non-consideration of such peculiar disadvantages of women, which have got the recognition of fundamental rights would entail discrimination towards women. In such a situation, constitutional courts will have to interfere," it said. 

The Court therefore made its interim order absolute, and set aside the impugned orders of the Tribunal. It however clarified that the petitioners would have to produce the experience certificate within such time as PSC insists upon them. 

Citation: 2023 LiveLaw (Ker) 727

Case Title: Dr. Athira P. v. State of Kerala & Ors. and connected matter 

Case Number: OP(KAT) NO. 507 OF 2023 and OP(KAT) NO. 521 OF 2023

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