Not considering disadvantages attributable to motherhood in public employment amounts to discrimination: Kerala High Court

The Kerala High Court recently highlighted the need to deal with gender gaps in a realistic manner with situational analysis to address disadvantages faced by women due to maternity and motherhood. .Not taking into account “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,” said a division bench consisting of Justices A Muhamed Mustaque and Shoba Annamma Eapen.The Court observed that motherhood can lead to complex disadvantages, potentially causing gender gaps."Motherhood also produces complex disadvantages. This may result in a gender gap. Non-consideration of disadvantages attributable to motherhood will result in discrimination," the Court said. It, however, rejected viewing motherhood as a burden and advocated for eliminating barriers, enabling women to compete equally with men in public employment regulations.“Law and regulations need to address such situational reality of women based on maternity while framing rules and regulations related to public employment,” the Court added.It also underscored that motherhood is integral to the dignity of women.“The reproductive rights of a woman are part of the right to life under Article 21 of the Constitution. Reproductive rights of a woman include the right to become a mother or choose not to become a mother. Motherhood is also integral to the dignity of women,” stressed the High Court..The High Court made these observations while considering petitions filed by two women doctors pursuing MD Radiodiagnosis, who faced a delay in completing their compulsory senior residency program due to maternity leave.The Kerala State Public Service Commission (PSC) advertised Assistant Professor positions, requiring one year of senior residency experience. As the doctors took maternity leave, they could complete residency only in January 2024 and not by the November 2023 deadline.They contended that despite their representation to the government and the Director of Medical Education, they were denied permission.They were prompted to move the High Court since the Kerala Administrative Tribunal also ruled against them, citing the lack of required qualifications on the application deadline..The High Court explained how biological differences may lead to bias while developing public employment rules, and highlighted the Constitution's promotion of both formal and substantive equality to address gender-based discrimination.“Our Constitution states about both formal and substantive equality. Formal equality is the result of a conscious approach to treat them equally without there being distinction or differences on gender attributes. Substantive equality on the other hand focuses on the space, if that space is not allowed to exist, it may result in discrimination based on sex. Thus, substantive equality allows us to create space, removing barriers that exist in gender attributes and accommodating differences,” the Court said.It added that Indian courts have mandated remedial action for the issues related to the disadvantages and indirect discrimination faced by employed women due to biological differences compared to men..The Court recognized that addressing challenges faced by women due to maternity requires balancing individual rights and the broader interests of public employment within a prioritized time frame.This exercise is crucial for the State or PSC to undertake, the Court opined, saying, "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 clarified that the same doesn't require relaxation of necessary qualifications but suggested that the deadline to submit the experience details could be extended for those who had to avail maternity leave in that period. The High Court allowed the petition and proposed that the PSC seta flexible timeframe for producing the required certificate. However, the Court clarified that the petitioners would be required to submit their experience certificates within the timeframe specified by the PSC..The petitioners were represented by advocates Vishnu Bhuvanendran, B Anusree, Abhilash CV, and Varun Jacob.The State authorities were represented Senior Government Pleader Vinitha B..[Read Judgment]