A TRANSFORMATIVE APPROACH TOWARDS CHILD CARE LEAVE VIS-A-VIS CHILD RIGHTS
Updated: Aug 28, 2020
By- Vagish Yadav, 4th Year Student at Amity Law School, Lucknow
Recently, the Uttarakhand High Court has upheld using a Judgment and order dated 24.07.2020 in the case of Smt. Tanuja Tolia v. State of Uttarakhand and others that a contractual employee is also entitled to Child Care leave. The development of recognition of Child Rights and Child Care Leave (hereinafter called “CCL”) can be vividly seen in the journey of legitimizing Child Care Leave and establishing the granting of it as the norm as in the instant case.
In this article, I will analyze and trace the origins of CCL and further analyze in the context of contemporary approaches to the rights of the child.
By means of Government of India, DoPT Notification (The Central Civil Services (Leave) (Amendment) Rules, 2009) dated the 1st December 2009, Rule 43C, which provides for Child Care Leave was inserted in the Central Civil Services (Leave) Rules 1972.
It is pertinent to note certain eye-catching provisions of the original rule:
It is to be noted that the Rule applied only to a Woman Government Servant when the provision was brought into existence. Later, it was amended to include single male Government Servants also.
A total Child Care leave period may be granted for a total of 2 years, i.e., 730 days, and the salary to be paid must be equal to the pay drawn immediately before the leave.
That CCL is not detrimental to any other leave and is to be granted in addition to any other kind of leave.
Clarification in (4) that the CCL may be available in more than one spell means that the general practice is to grant the 730 days leave in continuation.
That the CCL is granted shall only be for the first two children and not for subsequent children.
This last part is a result of predecessor orders and notifications by DoPT, Govt. of India. In the circular dated 29th September 2008, it was notified that the CCL might be granted only for two surviving eldest children.
In the case of Kakali Ghosh v. Chief Secretary, Andaman and Nicobar Islands Administration and Others, the court analyses the rule and notifications in light of Rule 7 of CCS (Leave) Rules. Under Rule 7, it is stated that the leave cannot be claimed as a Right, and such leave can be refused when the exigencies of public services so require. In this case, leave for 730 days was prayed for, and the authority had granted 45 days leave by means of the impugned order, which was set aside by the tribunal. The order of the tribunal was challenged in the High Court, which set aside the order of the tribunal and reversed the judgment.
Hence, the Apex Court, while observing that the authority did not state reasons for refusing the 730 days continuous leave, upheld the order of the tribunal. In this judgment, the analysis and the grant of the CCL were done only based on the provisions of the Rule 43C. No accord or heed was paid to the relation of CCL with the Rights of the child.
THE ADVANCEMENT IN GENDER NEUTRALITY AND OTHER ASPECTS
In this part, we will see the development of Child Care Leave as an important part of the service of an employee on the precursor of not a benefit for the parent but as a benefit for the child.
In the case of Dr. Rachna Chaurasia v. State of Uttar Pradesh, the Court had held that the child care leave must not be restricted only to the regular female employees but may be availed by the contractual employees. The issue, in this case, was whether the
The reasoning in the judgment of the court is derived from the concerns of Article 14, 15(3), and the Maternity Benefit Act 1961. Payment under the Maternity Benefit Act is granted under Section 5, clause (3) of which states that such period shall not be more than 12 weeks, not more than six weeks before the expected date of delivery. The Court provided that the maternity benefits and child care benefits shall be extended to all female employees, temporary, permanent, or contractual. Hence, in this case, the ambit of employees for the CCL was increased by the inclusion of contractual employees.
The DoPT, Govt. of India by means of a notification dated 11.12.2018 amended Rule 43C and induced an important child care element in the provision. It is to be noted that the child care leave shall not be only granted to the females, but it should be granted analysing each case considering its circumstances. To neutralize the bias, the provisions were amended to include
“Single Male Government Servants.” Single Male Government Servant means “an unmarried, widowed, or a divorcee male government servant.” The benefit of child care leave was granted to single male defense Civilian Industrial Employees at par with the Female counterparts.
This inclusion of the males aligns with the transformative reading of the constitution of India, as suggested by Gautam Bhatia in his book “The Transformative Constitution.” This stereotype encompassed by the original Rule is based on the “Public-Private Separate Spheres Theory”. The theory propounds that the private sphere is the responsibility of the females, and the public sphere is that of the males. This stereotype has still not been completely broken even after the amendment as the amended rule only includes single male government servants.
CHILD RIGHTS AS A FOUNDATION
If the child is made the centre of the provision, the principles of non-discrimination, best interests of the child, development of the child, and the considering of the views of the child must be observed and obeyed.
Under the UN Convention for Rights of the Child, it is provided in Article 18 that both the parents have common responsibilities for the upbringing and development of the child. Hence, the best interest of the child will be the basic concern. The best interest principle is very important and must always be kept in mind by the lawmakers and policymakers while dealing with the law that affects a child. Moreover, it is also pertinent to reiterate the settled law that the court of law shall directly follow the Customary International Law not inconsistent with the Indian Law.
When a child is kept at the centre of the society, all the decisions shall ipso facto be in the best interests of the child. Hence, in a way, the Rule 43C for Child Care Leave is partially in conflict with the Best Interest Principle as enunciated in Article 3 of the UNCRC.
Now, the recent judgment of Uttarakhand High Court in the case of Smt. Tanuja Tolia's case (Supra) notices that the Child Care leave is not much of recognition of a woman’s right as it is that of the child. The judgment further highlights that India is a signatory to the UNCRC, and child care leave benefits neither the father nor the mother but the child. Since the provision is child-oriented, the best interest of the child must be read with the provision. However, the issue in the case was whether a woman appointed on a contractual basis is entitled to Child Care leave to which the court ordered in favour of the woman citing various judgments. But the important aspect in this judgment is that the Court held that a denial of CCL to a contractual Government Employee is a violation of the rights of a child under Article 14 and 21 of the Constitution of India.
Hence, as per my observations, the analysis done hereinbefore percolates down to these fine points:
The best interest of the child must be incorporated in the CCL provision. In doing the same, the mother and the father shall be viewed at an equal footing, at least for the later years of the child’s life under Article 18 of UNCRC.
The provisions of Law, like CCL, which are in connection with the children, must be child-centred. The Social-Ecological Model, whereby a child is kept at the conspicuous centre of the Society, must be followed in bringing laws and policies.
Child Care Leave is a child-centred provision, and the denial of the same in an arbitrary manner is a denial of the rights of the child under Article 14 and Article 21 of the Constitution of India.
The legislation must endeavour to include the male government servants also, and the CCL grant must be decided on the individual case basis, looking at the circumstances of the case as this will be an unblemished, justified, and analytical approach.
 Government of India, Department of Personnel and Training, O.M. Nos. 13018/2/2008-Estt. (L) dated 11th September 2008 and 13018/2/2008- Estt. (L), dated 29th September 2008.
 Soman v. Geologist, 2004 (3) KLT 577, ¶15.
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)