The authors, Rishabh Raj and Komal Aher are third-year students at Manikchand Pahade Law College, Aurangabad
Featured artwork: Abstract poster illustration by BATHI for the National Disability Theater.
The denial of child care leave to parents of disabled children brings this crossroads-end where caregiving meets gender equality and constitutional rights into focus. An intensive child care burden needs to be placed somewhere and nowhere, in particular when mothers carry most of it, and structural inequalities aren’t offset by supportive policies. Inability of state policies, therefore, to achieve these needs undermines both participation of women at the place of work and basic rights of disabled children.
Recently, the honourable Supreme Court in Shalini Dharmani v. The State of Himachal Pradesh & Ors. made it abundantly clear that such leave is not a welfare measure but a constitutional obligation. Upholding that both the right to care as applied to children and the right to humane working conditions of the parent are protected under Articles 21 and 42, respectively.
The issue at first came before the honourable Himachal Pradesh High Court through a writ petition seeking adoption of Rule 43-C of the Central Civil Services (Leave) Rules, incorporating child care leave for parents having disabled children. However, the petition was dismissed on the grounds that the state government had deleted Rule 43-C from its service rules.
The article undertakes a critical examination of the constitutional implications of denying child care leave to parents of disabled children in their interplay with factors of caregiving, gender equality, and fundamental rights. The article highlights how these state policies, neglecting the caregiving needs of such parents, more particularly mothers, violate key constitutional mandates in the right to life with dignity under Article 21 and the right to humane working conditions under Article 42. Child care leave is no longer just a welfare measure but, in fact, an obligation through the Constitution to ensure that equality and justice are substantively achieved.
How the Constitutional Mandate for Disabled Children Differs from General Fundamental Rights
Constitutional provisions for disabled children differ from general fundamental rights in many ways because they recognise specific challenges and the tailored support they need constantly. Article 14 (Equality) and Article 15 (Non-discrimination) may apply universally. However, their application does not cater to additional resources that may be required by children to achieve true equality. Consequently, the need for equality must be accompanied with equity, which demands the state to make some specific interventions.
In fact, more than that, Articles 41 and 42 of the Constitution place a positive duty on the state not just to acknowledge but to support the rights of disabled children. Again, this is totally in contrast with general rights, where most require people to make claims. What is implied in this is that the well-being of disabled children is intrinsically tied to the rights of their carers; for example, the right to life under Article 21 not only extends to the mere existence but to all conditions necessary for a dignified life, such as parental care.
The Directive Principles of State Policy are entrenched in the Indian Constitution in order to enable better administration of states. Having said that, the DPSP is not enforceable. In the case of Bandhua Mukti Morcha v. Union of India, the honourable Supreme Court ruled that, while DPSPs are essential to the nation’s governance, they are not legally enforceable. Nevertheless, the state must enforce the enacted statute in order to fulfil its constitutional duty once a DPSP has been implemented through a statutory enactment.
The Rights of Persons with Disabilities Act, 2016 (RPwD), further enforces this mandate by providing a comprehensive framework for the protection of rights and ensuring special measures for them while outlining the need for special measures. This ever-changing nature of the mandate demands that there be constant adaptations made for reflections of societal trends in understanding disability, and, therefore, such policies empower disabled children and their families. It may be a case of policymakers simply complying with the legal standards but creating an environment that is supportive and enables disabled children to thrive, ensuring that their rights are entirely realised within the broader constitutional framework.
Application of Constitutional Mandate to Disabled Children
Constitutional protections for disabled children require a more liberally expansive form of rights. While taking the example of the right to education recognised in Article 21, it is not merely access to school but makes a necessary element of individualised support and resources for an enhanced lifecycle of disabled children in educational settings. In such cases, the lack of adequate leave for caregiving creates a structural problem undermining rights such as equality and non-discrimination guaranteed in Article 15(3).
Denying this benefit to parents of disabled children will directly affect their ability to fulfil their responsibilities as carers, which is an oversight not only inflicting the parents’ right to humane work conditions under Article 42 but also goes to the very foundations of the disabled child’s rights to essential care and support, indispensable for its development and well-being.
Constitutional Protections within the RPwD Act, 2016
The constitutional mandates are supplemented by the Rights of Persons with Disabilities Act, 2016, (RPwD), which forms a robust legal framework for disabled people. Section 3 of the Act forbids discrimination on the basis of disability. Section 4(2) of the Act obligates the state to render support to children with disabilities in order that such children can exercise full rights in society. These provisions should be read in the backdrop of constitutional obligations, reflecting a coherent strategy toward realization of rights and protections for disabled children.
The failure of the Himachal Pradesh government to implement child care leave policies amounts to a dual violation of the current scenario. It violates the fundamental right of the child to receive essential care from its parents, which is crucial for the child’s development. Secondly, it violates the right of the parent to humane working conditions under Article 42, especially where the parent is a primary carer.
Misalignment of the Legal Framework with Constitutional Obligations
Rule 43-C of the Central Civil Services (Leave) Rules, 1972, which permit female government servants and single male government servants to take child care leave for up to seven hundred and thirty days during their entire tenure in order to care for their two eldest surviving children up to the age of eighteen, with no age restriction for children with different abilities, is a flagrant violation of the constitution. Failure on the part of the Himachal Pradesh government indicated a very vital gap between policy and constitutional principles. This gap appears not only because of unawareness of the special needs of disabled children but also in the failure to establish their state policies in consonance with constitutional mandates. Such leave denial forces parents to make untenable choices between their jobs and their caregiving responsibilities, an inequality that affects women far more than men and fuels gender injustice.
The judgement of the Supreme Court in Deepika Singh v. Central Administrative Tribunal and Ors. stresses the need for a dynamic law that responds to social realities, especially the significant burdens of caregiving that disproportionately affect working women. This was not supported by the decision of the Himachal Pradesh High Court, which contends that since the state has not adopted the Central Civil Services (Leave) Rules, 1972, the petitioner was informed such leave could not be sanctioned to her.
A New Understanding of “Associated Fundamental Rights” for Disabled Children
The rights of disabled children thus “strongly suggest that they have a direct nexus with the potential caregiving of their parents.” For example, the right to life and development under Article 21 is closely tied with the parent’s right to take leave to provide care at this level. Denial of such leave thus reads on to impair the child’s enjoyment of health, education, and social services.
In instances where the children have dissimilar kinds of ability, the state should be more than general welfare policies in ensuring that there are capabilities that allow working parents to advance the parents’ care role without any employment-related penalty. The failure by the Himachal Pradesh government to implement the leave policies required by law is one example of constitutional violations, which undermine the rights of parents and the well-being of disabled children.
Way Forward
A plea unfolding the serious concern brought it into public; likewise, there would be similar issues yet to be unfolded. A committee with regard to the watchdog of these constitutional mandates is imperative for a just society. There is a basic employer-employee relationship that needs to be followed. An employer holding responsibility towards its employees shouldn’t lack in providing the utmost care to them and their families. The state, being an employer and lawmaker, shouldn’t have refrained from its responsibilities. Adoption of such provisions is crucial with regards to women, their differently abled children, and part thereof; navigating such concerns and enacting provisions in relation to them would have resisted the issue from becoming a violation of the constitutional mandate.
The constitutional mandate being laid emphasis on in the afore-mentioned ruling would have been getting violated for a long time, as the state didn’t adopt the Central Civil Services (Leave) Rules, 1972. Who is there to compensate for? Does monetary compensation synchronise with the violated constitutional mandate?
Systemic reform that would enable employment policies to correspond to constitutional principles would be essential to furthering gender equality and enabling both parents to act freely to fulfil their work and care duties. Otherwise, the state would perpetuate structural inequality and pay no attention to its attendant ill-treatment of disabled children.
Conclusion
The plight of parents, especially mothers of disabled children is a heart wrenching reminder of the way the policies of employment and welfare in India fall away from expectations. The Constitution mandates that such children be given extra care and attention so that they can reach up to the equal opportunities demanded. The latter would have been feasible only if there were sufficient leave policies at work empowerment to enable parents to attend to these children’s needs.
Meaningful women’s participation in the workplace requires not paper policies but action plans on the ground to implement them. The Constitution envisions equality and a good life, and such a vision must be brought about by supporting parents of disabled children through inclusive leave policies. That the state was unable or unwilling to enact those kinds of policies was part of a larger failure to perform constitutional duties that must be urgently addressed if this is to become at all a more just society.
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