Ba:r & Bench (www.barandb,ench.com)
IN THE HIGH COURT OF DELHI AT NEW DELHI (EXTRAORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (CIVIL) NO. OF 2020
PUBLIC INTEREST LITIGATION
IN THE MATTER OF:
KUSH KALRA …PETITIONER
VERSUS
UNION OF INDIA & ORS. …RESPONDENTS
INDEX
S.No. Particulars Page No.
1. Notice of Motion
2. Urgent Application
3. Court Fee
4. Synopsis & List of Dates
5. Memo of Parties
6. Writ Petition under 226 of the Constitution of India filed in public interest seeking directions for providing relaxation in attendance for female students on account of pregnancy, child birth and post-natal care.
7. Annexure P1 (Colly): Copy RTI Application and its reply by All India Council for Technical Education.
8. Annexure P2 (Colly): Copy RTI Application and its reply by Bar Council of India.
9. Annexure P3 (Colly): Copy RTI Application and its reply by University Grant Commission.
10. Annexure P4 (Colly): Copy RTI Application and its reply by Medical Council of India.
11. Annexure P5 (Colly): Copy of the RTI Application along with its reply by Central Board of Secondary Education. Ba:r & Bench (www.barandb,ench.com)
12. Annexure P6 (Colly): Copy of the petitioner’s letters to UGC, BCI as well as AICTE requesting them to form rules/regulations for female students for relaxation of attendance norms in case of pregnancy.
13. Annexure P7: Copy of the press release by UGC granting maternity leave to M.Phil. and Ph.D. students.
14. Annexure P8: Copy of the National Family Health Survey, 2015-16.
15. Annexure P9 (Colly): Copy of the relevant maternity benefit statutory provisions of U.K., USA, Germany, Australia and Belarus.
16. Application under Section 151 CPC for exemption from filing true typed copies of defective annexures if any, along with Affidavit
17. Vakalatnama
Petitioner
Through
KSA Law Offices LLP Advocates 385, Lawyer’s Chamber-II Delhi High Court New Delhi-110003 Mob: 9311399002 E-mail: [email protected]
Place – New Delhi Date - 14.02.2020 Ba:r & Bench (www.barandb,ench.com)
IN THE HIGH COURT OF DELHI AT NEW DELHI (EXTRAORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (CIVIL) NO. OF 2020
PUBLIC INTEREST LITIGATION
IN THE MATTER OF:
KUSH KALRA …PETITIONER
VERSUS
UNION OF INDIA & ORS. …RESPONDENTS
NOTICE OF MOTION To
Sir,
The Petitioner above named are filing the present Writ Petition under
Articles 226 and 227 of the Constitution of India and a copy of the said complete Petition is being enclosed herewith and you are requested to do the needful in the matter. The said matter is likely to be listed before the
Hon’ble Court on ___.02.2020.
You are therefore intimated accordingly.
Petitioner
Through
KSA Law Offices LLP Advocates 385, Lawyer’s Chamber-II Delhi High Court New Delhi-110003 Mob: 9311399002 E-mail: [email protected]
Place – New Delhi Date - 14.02.2020 Ba:r & Bench (www.barandb,ench.com)
HIGH COURT OF DELHI AT NEW DELHI (EXTRAORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (CIVIL) NO. OF 2020
PUBLIC INTEREST LITIGATION
IN THE MATTER OF:
KUSH KALRA …PETITIONER
VERSUS
UNION OF INDIA & ORS. …RESPONDENTS
URGENT APPLICATION
Sir,
Will you kindly treat this Writ Petition under Article 226 of the
Constitution of India as an urgent one in accordance with the High Court
Rules and Orders.
The grounds of urgency are as prayed for in the Writ Petition and the
Application for Interim Relief.
Petitioner
Through
KSA Law Offices LLP Advocates 385, Lawyer’s Chamber-II Delhi High Court New Delhi-110003 Mob: 9311399002 E-mail: [email protected]
Place – New Delhi Date - 14.02.2020 Ba:r & Bench (www.barandb,ench.com)
SYNOPSIS AND LIST OF DATES
This Writ Petition under Article 226 of the Constitution of India is being filed in public interest. The Writ Petition seeks issuance/ formulation of guidelines by Respondents Nos. 1 to 3 in consultation with Respondent
Nos. 4 to 7 for providing relaxation in attendance norms for women studying in institutions imparting higher education established and operated under the aegis of Respondent Nos. 4 to 7 on account of their pregnancy, child-birth and post-natal care. This Writ Petition is warranted to secure and protect the rights of women who drop out of educational institutions or are detained in a semester owing to failure to meet the minimum attendance requirement on account of pregnancy, child-birth and post-natal care.
This Hon’ble Court in the case of Vandana Kandari vs. University of
Delhi reported in 170 (2010) DLT 755 opined that a female student cannot be deprived from her student status or can be detained in any semester on account of the fact that she could not attend the classes because of her pregnancy and suggested that Respondent No. 5 (Bar
Council of India) to make rules for women students claiming relaxation on ground of maternity relief so that they are not deprived of appearing in the LLB examinations due to pregnancy. Despite the categorical directions, Respondent No. 5 has failed to make rules in this regard.
Though, a division bench of this Hon’ble court by order dated 10.01.2011 passed in LPA No. 662 of 2010 allowed the appeal filed by University of
Delhi against the order of the ld. Single judge mentioned above, the decision of the division bench was based upon interpretation of the Ba:r & Bench (www.barandb,ench.com) existing legal framework which did not permit any relaxation for lack of attendance. However, it is extremely important to note that based upon the ‘special features’ existing in the case namely the inability on the part of the petitioner therein to fulfill the attendance criteria owing to pregnancy, relaxation was granted as a concession.
The Petitioner filed RTIs with Respondent Nos. 4 to 7 seeking information about existing rules/regulations/guidelines for relaxation of attendance in favour of pregnant women. In reply, these Respondents have answered in the negative.
Interestingly, Central Board of Secondary Education (CBSE) which provides affiliation to English medium schools till Class 12 has framed
Rules (Rule 14) for condonation of shortage of attendance on several grounds such as prolonged illness, loss of father/mother or any other reason of similar serious nature, authorised participation in sponsored tournaments and sports meets etc. But it is surprising that Respondent
Nos. 4 to 7 which are the statutory regulatory bodies for higher education in India do have similar rules/regulations for condonation of shortage in attendance.
In a country like India most women marry at an early age and continue their education after marriage. According to the National Family Health
Survey Report 47.4% of women surveyed between the age 20-24 has been married by age 18 years. Therefore, lack of regulations/ guidelines by the Respondents for women who are deprived from their student status or are detained in any semester for failure to secure requisite the Ba:r & Bench (www.barandb,ench.com) minimum attendance requirement owing to pregnancy, child-birth or post-natal care amounts to violation of their Fundamental Rights.
Right to education between the ages of 7 to 14 years i.e., primary/ secondary education is guaranteed by Article 21A. The Hon’ble Supreme
Court in the case of Justice K.S. Puttaswamy (Retd.) and anr. v. Union of
India and ors. reported in (2017) 10 SCC 1 has highlighted that women have a Constitutional right to make their own reproductive choices as a part of personal liberty as recognised by Article 21. In other words, women have a Fundamental Right under Article 21 to exercise their reproductive rights. It follows that women who have so exercised this
Fundamental Right also have the adjunct Fundamental Right guaranteed by Article 21 to continue with their normal lives thereafter. This facet will necessarily include the right to pursue their education during and after their pregnancy. The State is under an obligation to secure and protect this right which clearly falls within the ambit of Article 21. In case women are unable to obtain the minimum attendance and lose their student status or are made to drop a semester owing to pregnancy, child- birth or post-natal care, this right will stand violated. This militates against the reproductive rights guaranteed to women by Article 21. Since there are no norms/ guidelines/ regulations governing this issue, the
Fundamental Rights of women stand violated.
On the other hand, decision to marry and the age of marriage for girls in
India continue to remain at hands of parents and their families. It is commonplace for girls pursuing their under-graduate/ graduate studies to be married off. Thereafter, pregnancy and child bearing are decisions Ba:r & Bench (www.barandb,ench.com) which are often beyond their control and are influenced by family and social pressures. Therefore, rights of women who are focussed on obtaining higher education despite such severe challenges ought to be protected. Their right to pursue and complete their higher education goals can only be secured when the State provides for a framework which allows these women incentives in the form of attendance relaxation so that in exercising their reproductive rights or bearing a child owing to decisions beyond their control are not detrimental to their educational aspirations.
The Parliament in order to protect the rights of women who had long suffered due to pregnancy, child-birth and post-natal care enacted the
Maternity Benefit Act, 1961. This beneficial legislation provides several benefits and incentives to women who are in employment and several relaxations including maternity leave etc. Ironically, such benefits are not provided to women who are pursuing their qualifying degrees from educational institutions which will enable them to become a part of the workforce. The State cannot discriminate between women who are working and women who are studying. The benefits of the above- mentioned legislation ought to also apply to women who are studying.
Gender equality and dignity for women, is an inalienable and inseparable part of the basic structure of the Constitution. Since women transcend all social barriers, the most fundamental facet of equality under the
Constitution is gender equality and gender equity.
It will not be out of place to mention that this Hon’ble Court Rama
Pandey vs. Union of India reported in (2015) 221 DLT 756 s upheld Ba:r & Bench (www.barandb,ench.com) the rights of surrogate mothers to obtain maternity leave. The
Constitutional mandate to the State is that it shall not discriminate against any citizen on grounds of sex and marital status. Therefore, the
State has to treat women whether working or studying with the same yardstick and provide the same benefits and protection through statutory and regulatory framework. This is the very spirit of equality enshrined under Article 14.
The international instruments recognise and reiterate that the family is a natural and fundamental group unit of society; provide that it is the right of men and women of marriageable age to marry and found a family, and clearly state that such right is entitled to protection by society and the
State.
In today’s time, there is no scope for discrimination on the ground of pregnancy and not allowing females students to appear in the end term exams on account of their choice to embrace motherhood.
The Petitioner preferred representation to Respondent Nos. 4 to 7 for formulation of rules/regulations for allowing women to obtain relaxation in attendance norms when faced with pregnancy, child-birth and post- natal care. However, there has been no response forthcoming. Therefore, the Petitioner is constrained to file this Writ Petition seeking appropriate directions from this Hon’ble Court in this regard.
The facts leading to the filing of this Writ Petition are as under:
DATES EVENTS
11.06.2018 Reply of RTI filed by the Petitioner received from AICTE Ba:r & Bench (www.barandb,ench.com)
informing the Petitioner that AICTE has not framed any
rules and regulations regarding the Women student
claiming relaxation on ground of maternity relief for
institutions under AICTE.
04.07.2018 Reply of Petitioner’s RTI from UGC informing the
Petitioner that no such information is available with UGC
regarding the queries of Petitioner of whether there are any
rules and regulations there is no regulation framed by
UGC for women students claiming relaxation in
attendance on the ground of maternity relief.
11.07.2018 Letter by the Petitioner to AICTE requesting for the
formation of rules/regulations for female students who are
deprived from their student status or are detained in any
semester on account of the fact that they / she could not
attend the classes because of her pregnancy.
01.10.2018 Letter by the Petitioner to UGC requesting for the
formation of rules/regulations for female students who are
deprived from their student status or are detained in any
semester on account of the fact that they / she could not
attend the classes because of her pregnancy.
04.09.2019 Reply by BCI informing the Petitioner that it has not
framed any rules/regulations regarding the women students
claiming relaxing on ground of maternity relief in
appearing in LLB examination due to pregnancy. Ba:r & Bench (www.barandb,ench.com)
10.09.2019 Letter by the Petitioner to BCI requesting for the formation
of rules/regulations for female students who are deprived
from their student status or are detained in any semester on
account of the fact that they / she could not attend the
classes because of her pregnancy.
01.11.2019 Reply by MCI to the RTI of Petitioner informing that the
Medical Council of India’s Graduate Medical Education
Regulations, 1997 are silent in regard to giving relaxation
in attendance on ground of maternity.
14.02.2020 Hence this Petition. Ba:r & Bench (www.barandb,ench.com)
IN THE HIGH COURT OF DELHI AT NEW DELHI (EXTRAORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (CIVIL) NO. OF 2020
PUBLIC INTEREST LITIGATION
IN THE MATTER OF:
KUSH KALRA …PETITIONER
VERSUS
UNION OF INDIA & ORS. …RESPONDENTS
MEMO OF PARTIES
Kush Kalra Petitioner s/o Shri Vijay Kalra r/o 2/16B ,Jangpura A New Delhi 110014
Versus
Union of India Through its Secretary Ministry of Human Resource Development 1, West Block, Rama Krishna Puram, New Delhi-110066 … Respondent No. 1
Union of India Through its Secretary Ministry of Women and Child Development Shastri Bhawan, New Delhi-110001 … Respondent No. 2
Union of India Through its Secretary Ministry of Social Justice and Empowerment Room no. 202, 2nd floor C-wing, Shastri Bhawan, New Delhi-110001 … Respondent No. 3
All India Council of Technical Education (AICTE) Through Its Chairman Nelson Mandela Marg Ba:r & Bench (www.barandb,ench.com)
Vasant Kunj, New Delhi-110070 … Respondent No. 4
Bar Council of India (BCI) Through Its Chairman 21, Rouse Avenue Institutional Area, Near Bal Bhawan, New Delhi-110 002 … Respondent No. 5
University Grants Commission (UGC) Through Its Secretary Bahadur Shah Zafar Marg, New Delhi-110002 … Respondent No. 6
Medical Council of India (MCI) Through Its Secretary Dada Dev Mandir Road Dwarka Phase -1, Pocket 14, Sector 8 Dwarka, New Delhi-110077 … Respondent No. 7
Petitioner
Through
KSA Law Offices LLP Advocates 385, Lawyer’s Chamber-II Delhi High Court New Delhi-110003 Mob: 9311399002 E-mail: [email protected]
Place – New Delhi Date - 14.02.2020 Ba:r & Bench (www.barandb,ench.com)
IN THE HIGH COURT OF DELHI AT NEW DELHI (EXTRAORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (CIVIL) NO. OF 2020
PUBLIC INTEREST LITIGATION
IN THE MATTER OF:
KUSH KALRA …PETITIONER
VERSUS
UNION OF INDIA & ORS. …RESPONDENTS
WRIT PETITION UNDER 226 OF THE CONSTITUTION OF INDIA FILED IN PUBLIC INTEREST SEEKING DIRECTIONS FOR PROVIDING RELAXATION IN ATTENDANCE FOR FEMALE STUDENTS ON ACCOUNT OF PREGNANCY, CHILD BIRTH AND POST-NATAL CARE.
To The Hon’ble Chief Justice of Delhi High Court and His Lordship’s Companion Justices of the said Hon’ble Court.
The humble Writ Petition of the above named Petitioner
MOST RESPECTFULLY SHOWETH:
1. That the Petitioner is filing the instant Writ Petition in public
interest as the Petitioner is aggrieved by non-existence of
rules/regulations for relaxation of attendance norms for female
students who are unable to attend requisite number of classes owing
to their pregnancy, childbirth or post-natal care which is resulting in
deprivation of fundamental rights of pregnant women enshrined in
constitution of India. The Petitioner has no personal interest in the
litigation and the Petition is not guided by self-gain or for gain of
any other person/institution/body and that there is no motive other
than of public interest in filing the present Writ Petition. Ba:r & Bench (www.barandb,ench.com)
2. That the Petitioner has based the instant Writ Petition from
authentic information and documents publicly available. The
present Writ is being filed to seek issuance/ formulation of
guidelines by Respondents No. 1 to 3 in consultation with
Respondents No. 4 to 7 for relaxation of attendance for women
studying in in institutions of imparting higher education
established and operated under the aegis of Respondents No. 4 to
7 who fail to fulfill the requisite attendance criteria on account of
pregnancy, child-birth and post-natal care.
3. That the Petition, if allowed, would benefit female students in
higher education forcing a woman to choose between reproductive
choice and education is the violation of her fundamental right.
Hon’ble Supreme Court has recognized the reproductive choice of
women as a matter of fundamental choice and as an intrinsic facet
of personal liberty under Article 21 in the case of Justice K.S.
Puttaswamy (Retd.) and anr. v. Union of India and ors. reported in
(2017) 10 SCC 1. Further, in the case of Suchita Srivastava v
Chandigarh Administration reported in (2009) 9 SCC 1, Hon’ble
Supreme Court held that a woman's right to make reproductive
choices is a dimension of 'personal liberty' as understood under
Article 21 of the Constitution of India”. It is not out of place to
mention that Hon’ble Delhi High Court in the case of Ravina v
Union of India and ors., W.P.(C) 4525/2014, held that “The choice
to bear a child is not only a deeply personal one for a family but is
also a physically taxing time for the mother. This right to Ba:r & Bench (www.barandb,ench.com)
reproduction and child rearing is an essential facet of Article 21 of
the Constitution.”
4. That the affected parties by the relief sought in the present Petition
would be the Union of India, Ministry of Human Resource
Development, Ministry of Women and Child Development,
Ministry of Social Justice and Empowerment, University Grant
Commission, Medical Council of India, Bar Council of India and
All India Council for Technical Education. To the best of
knowledge of the Petitioner, no other persons / bodies / institutions
are likely to be affected by the Orders sought in the Writ Petition.
5. That the Petitioner is a public-spirited person and was conferred
National Youth Award by Ministry of Youth Affairs and Sports,
Government of India and also a Limca Book Record Holder for
Most Books on Law Published in year. The Petitioner firmly
believes that the Respondents must frame rules/ regulations for
female students who are deprived from their/ her student status or
are detained in any semester on account of the fact that they/she
could not attend the classes because of their/ her pregnancy
6. That the Petitioner had made several representations/ RTI
Applications to the Respondents as explained later in this Petition.
Further, by its various letters addressed to Respondents the
Petitioner sought for framing of rules and regulations on the above-
mentioned issues. Neither any action has been taken nor any
meaningful response has been given by the Respondents. Ba:r & Bench (www.barandb,ench.com)
7. That the facts leading to the present Petition are as follows:
i. It came to the knowledge of Petitioner that presently there
are no rules/ regulations in place for female students
studying in institutions of higher education which condone
shortage of attendance in an academic semester or year
which occurred due to pregnancy, child-birth or post-natal
care. The lack of the same has been causing grave hardship
to the female students.
ii. To test the veracity of the information the Petitioner filed an
RTI with All India Council for Technical Education seeking
their reply on the following queries:
(a) Has the AICTE made some rules / regulations
regarding the women students claiming relaxation on
ground of maternity relief so that they (women
students) are not being deprived of appearing in the
examinations due to pregnancy? Kindly provide all
the copies of rules and regulations in this regard.
(b) Can a student of college studying in India claim
relaxation on ground of pregnancy/maternity for
appearing in the exam? Kindly provide all
guidelines/orders in this regard.
(c) Is there any different criteria for attendance for
women students in India who wish to appear for the
exams? Kindly provide all guidelines/orders/rules in
this regard. Ba:r & Bench (www.barandb,ench.com)
Copy RTI Application and its reply by Respondent No. 4 are
annexed as Annexure P-1 (Colly). iii. Similar RTI Applications were preferred by the Petitioner to
Bar Council of India, University Grants Commission and
Medical Council of India.
Copies of these RTI Applications and their reply are
annexed as Annexure P-2 (Colly)., Annexure P-3 (Colly).
and Annexure P-4 (Colly). iv. The Petitioner further filed an RTI Application to Central
Board of Secondary Education seeking their response on
similar queries raised in earlier RTI Applications.
Copy of the RTI Application along with its reply is annexed
as Annexure P-5 (Colly). v. The petitioner was perturbed by the fact that that neither the
concerned ministries viz. Respondent No. 1 to 3 nor
Respondent No. 4 to 7 viz., AICTE, BCI, UGC and MCI,
have formed rules/ regulations for granting relaxation in
attendance on ground of maternity relief, whereas,
surprisingly the CBSE in its Rule 13 and 14 of examination
bye-laws has provided for condonation of shortage of
attendance on several grounds such as prolonged illness, loss
of father/mother or any other reason of similar serious
nature, authorised participation in sponsored tournaments
and sports meets etc. The Petitioner also preferred letters to
UGC, BCI as well as AICTE requesting them to form rules/
regulations for relaxation of attendance for female students Ba:r & Bench (www.barandb,ench.com)
on account of pregnancy, child-birth or post-natal care, but
to no avail.
Copy of the said letters to UGC, BCI, AICTE has been
annexed as Annexure P-6 (Colly).
vi. However, the University Grants Commission (UGC) vide its
press release dated 12.04.2016 granted maternity leave/child
care leave of 240 days to the students of M.Phil./Ph.D. while
as discussed above there is no such provision for graduate
and post-graduate students in different fields.
Copy of the said press release has been marked as
Annexure P-7.
8. That to become a mother is the most natural phenomena in the life
of a woman. It must be realized that motherhood is not only the
most cherished gift for a woman but it is also onerous to her. While
it takes two partners for the choice of motherhood, but the weight
of the motherhood false disproportionately on a woman solely
because of her sex. In such a situation, keeping the unique position
of a female student in mind, maternity must be accommodated in
an academic semester/ year.
9. That the international instruments have also accorded special status
to motherhood. The Universal Declaration of Human Rights, in its
Article 25 (2) advocates for giving special care and attention to
motherhood and childhood. It is also pertinent to mention at this
point the Convention for Elimination of All Forms of
Discrimination against Women (CEDAW). The Government of
India ratified it on June 19, 1993 and acceded to CEDAW on Ba:r & Bench (www.barandb,ench.com)
August 8, 1993 with reservation on Articles 5(e) 16(1) 16(2) and
29 thereof. The Preamble of CEDAW reiterates the resolve to
eliminate all forms of discrimination against women as the same
violates the principles of equality of rights and respect for human
dignity; is an obstacle to the participation on equal terms with men
in the political, social, economic and cultural life of their country;
hampers the growth of the personality from society and family and
makes it more difficult for the full development of potentialities of
women in the service of their countries and of humanity. Article 11
(2) and 12 (2) of the Convention specifically talk about prevention
of discrimination against women based on maternity and asks the
state parties to provide for free and adequate services and nutrition
to women during maternity.
10. That in India the choice of motherhood is not a free choice to the
women. Indian women exercise little autonomy over reproductive
decision making. According to National Family Health Survey
2015-16 done by the Ministry of Health and Family Welfare, 47.4
percent of Indian women are married before the age of 18 despite
the Child Marriage Act, 2006. Out of this huge chunk of
population, only 10 percent of married adolescents currently use
contraception. Marriage as an exception to statutory rape in India
completely negates the sexual autonomy of married women in
refusing to engage in sexual intercourse with their husbands. A
corollary to that entails that female students get pregnant during
the course of their higher studies by dint of their choice or
otherwise. It is but natural that they want to pursue their studies Ba:r & Bench (www.barandb,ench.com)
during and after pregnancy. As held in K S Puttaswamy case,
procreation is a fundamental right under Article 21 and adjunct to
that right is the Right to continue with normal life. So, in case
women are unable to obtain the minimum attendance and lose their
student status or are made to drop a semester owing to pregnancy,
child-birth or post-natal care, this right will stand violated. This
militates against the reproductive rights guaranteed to women by
Article 21. Since there are no norms/ guidelines/ regulations
governing this issue, the Fundamental Rights of women stand
violated.
Copy of the National Family Health Survey, 2015-16 has been
marked as Annexure P-8.
11. That the University Grants Commission through its press release
dated 12.04.2016 granted maternity leave/child care leave of 240
days to the students of M.Phil./Ph.D. while no rules/ regulations
have been put in place for graduate and post-graduate students
pursuing higher studies in institutions under the aegis of
Respondent No. 4 to 7. This arbitrary creation of different classes
among female students is violative of Article 14 of the
Constitution.
12. That due to non-formation of rules/regulations for female students
by Respondents who are deprived from their student status or are
detained in any semester on account of the fact that they/she could
not attend the classes because of their/her maternity. This
discrimination is violative of fundamental right of equality before Ba:r & Bench (www.barandb,ench.com)
Law (Article 14 of the Constitution), Prohibition of discrimination
on grounds of religion, race, caste, sex or place of birth (Article 15
of the Constitution) and Right to live with Dignity (Article 21 of
constitution).
13. That the petitioner has also gone through statutes of U.K., U.S.A.,
Germany, Australia and Belarus related to maternity benefits. All
these countries have extended the benefit of maternity relief to
students as well. Unlike all these countries, in India the scope of
Maternity Benefit Act, 1961 has been extended only to women
who are in some kind of employment and not to the females who
are still pursuing their education. As a developing nation, we strive
to compete with these developed nations in every sphere and that is
only possible if we develop our human resource to the fullest. India
as a country is already facing very low representation of females in
different spheres. In such circumstances, non-extension of
maternity benefit to female student could further increase this
already existing gender disparity.
Copy of the relevant statutory provisions of these countries has
been marked as Annexure P-9 (Colly).
14. That the Petitioner has the means to pay the costs, if any, imposed
by the Hon’ble High Court.
15. That the Petitioner has not made any other representation with
regard to non-formation of rules/regulations by Respondents for
female students who are deprived from their student status or are
detained in any semester on account of the fact that they/she could Ba:r & Bench (www.barandb,ench.com)
not attend the classes because of their/her pregnancy childbirth or
post-natal care.
16. That the details as given in Synopsis and list of dates may kindly
be read as part of the Writ Petition.
GROUNDS:
17. That the Petitioner does not have any alternative and equally
efficacious remedy and is constrained to file the instant Writ
Petition in the nature of PIL on the following grounds amongst
other:
A. BECAUSE presently there is no uniform policy or
rules/regulations in place for female students who fail to attend the
requisite percentage of classes in an academic semester or
academic year on account of their pregnancy or during the
childbirth or for post-natal care and hence get detained or debarred
by the respective institution which leads to loss of precious time
and often dropping from the studies. Although, few of the higher
education institutions have policies in place for relaxation of
attendance for female student who are unable to fulfill the
attendance criteria owing to their pregnancy, but as the RTI replies
by Bar Council of India, All India Council for Technical
Education, Medical Council of India and University Grants
Commission reveal, no uniform rules/ regulations about the same
has been framed by these statutory regulators of Higher Education
in India.
B. BECAUSE Hon’ble Supreme Court has recognized the
reproductive choice of women as a matter of fundamental choice Ba:r & Bench (www.barandb,ench.com)
and as an intrinsic facet of personal liberty under Article 21 in
Justice K.S. Puttaswamy (Retd.) and anr. v. Union of India and
ors. reported in (2017) 10 SCC 1. It is not out of place to mention
that in the case of Suchita Srivastava v Chandigarh Administration
reported in (2009) 9 SCC 1 Hon’ble Supreme Court held that a
woman's right to make reproductive choices is a dimension of
'personal liberty' as understood under Article 21 of the Constitution
of India”. Pertinently, this very court in the case of Ravina v Union
of India and ors. W.P.(C) 4525/2014 held that “The choice to bear
a child is not only a deeply personal one for a family but is also a
physically taxing time for the mother. This right to reproduction
and child rearing is an essential facet of Article 21 of the
Constitution.” Adjunct to that right is the right to continue with the
normal life during pregnancy and after child-birth. Therefore, the
State is under an obligation to secure and protect this right which
clearly falls within the ambit of Article 21. In case women are
unable to obtain the minimum attendance and lose their student
status or are made to drop a semester owing to pregnancy, child-
birth or post-natal care, this right will stand violated. This militates
against the reproductive rights guaranteed to women by Article 21.
Since there are no norms/ guidelines/ regulations governing this
issue, the Fundamental Rights of women stand violated.
C. BECAUSE pregnancy and motherhood is onerous to women.
Pregnancy is a choice that involves two persons but the burden of
it disproportionately falls upon women only because of their ‘sex’.
By failing to classify men differently from women who may not be Ba:r & Bench (www.barandb,ench.com)
able to meet the gender-neutral attendance requirements due to
pregnancy, the rules for minimum attendance treat unequals
equally and violate Article 14 of the Indian Constitution which
guarantees the right to equality. Also, by treating unlikes alike, we
have set women up to fail within these institutions by using a male
standard as a rigid reference to invariably ‘otherwise’ female
experiences.
D. BECAUSE in patriarchal societies, there is a production of the
‘mother’ ever since a female is born. This is because of
tremendous social pressure on women to bear children in such
societies which define “woman’s nature” based on the ideals of
marriage, dutifulness, subservience and nurturing and regard any
transgression as deviance warranting social wrath and course
correction to align with the male authored norm of female nature
and permissible behaviour. In India the choice of motherhood is
not a free choice to the women. Indian women exercise little
autonomy over reproductive decision making. 47.4 percent of
Indian women are married before the age of 18 despite the Child
Marriage Act, 2006. Out of this huge chunk of population, only 10
percent of married adolescents currently use contraception.
Marriage as an exception to statutory rape in India completely
negates the sexual autonomy of married women in refusing to
engage in sexual intercourse with their husbands. Therefore, lack
of regulations/ guidelines regarding relaxation of attendance for
women who are deprived from their student status or are detained
in any semester for failure to secure requisite the minimum Ba:r & Bench (www.barandb,ench.com)
attendance requirement owing to pregnancy, child-birth or post-
natal care amounts to violation of their Fundamental Rights.
E. BECAUSE Article 15 of the Indian Constitution prohibits
discrimination based on sex inter alia other grounds. Although, the
prescribed attendance norms seem to be facially neutral in nature at
first sight, but these laws cause a disparate impact on female
students i.e., there is an ‘unintentional’ and ‘indirect’
discrimination due to these facially neutral attendance norms as
they treat the male and female students on same footing. In the
case of Navtej Singh Johar and ors. v. Union of India and ors.
reported in (2018) 10 SCC 1, Justice Chandrachud reasoned that
“what was important was the effect of law upon those who were
subject to it and not the intention of the legislature.” This was to
preclude not just formal but also substantive sex discrimination
which may be based on a ground in addition to but derived from
sex. Facially neutral attendance norms disciplining pregnancy,
penalise women for decisions they have little control over.
Although, pregnancy has been ascribed the status of a fundamental
right but it is quite clear that Indian women have little to no choice
over maternity decisions. Be it either way, maternity must be
accommodated in an academic year. The failure to do so is to
deprive women of their fundamental right under Article 15(1) of
the Constitution. Penalising women for falling short of these
androcentric attendance requirements due to maternity constitutes
sex discrimination, violates the right to equality and reduces Johar
to a parchment decree. Ba:r & Bench (www.barandb,ench.com)
F. BECAUSE India has ratified Convention on the Elimination of all
Forms of Discrimination against Women (CEDAW) and its
provisions have been cited in various judgments as well. Article
11(2) of the CEDAW enjoins state parties “to prevent
discrimination against women on the ground of marriage or
maternity”. Article 12(2) of the convention states that
“Notwithstanding the provisions of paragraph 1 of this article,
States Parties shall ensure to women appropriate services in
connection with pregnancy, confinement and the post-natal period,
granting free services where necessary, as well as adequate
nutrition during pregnancy and lactation.” Further, Article 25(2) of
the Universal of Human Rights provides that “Motherhood and
childhood are entitled to special care and assistance.” Not only
that, Article 42 of Indian Constitution provides for "maternity
relief” as well as securing "just and humane conditions of work".
In view of these, not providing relaxation in attendance norms to
female students owing to their pregnancy is not only the violation
of India’s international commitments but also against the principles
enshrined in the constitution.
G. BECAUSE several countries in the world have accorded statutory
maternity benefits to students. In the UK, Section 17 of the
Equality Act expands the prohibition against maternity based
discrimination, already existing in the workplace to also include
areas outside of it and in doing so, categorically mentions the
higher education. In USA, Title IX of the Education Amendment
Act, 1972 is a comprehensive federal law that prohibits Ba:r & Bench (www.barandb,ench.com)
discrimination on the basis of sex in any federally funded
education program or activity. In Australia, clause 2 of Section 21
of the Sex Discrimination Act makes it unlawful for an educational
authority to discriminate against a student on the ground of her
pregnancy or potential pregnancy. Likewise, in Germany, the
benefit of Maternity Protection Act has been extended to students
as well. In Belarus, the scope of State Benefits for Families
Raising Children Act has been extended to full time students in
vocational and technical institutions, specialized secondary and
higher educational institutions, post-graduate courses. Unlike all
these countries, in India the scope of Maternity Benefit Act, 1961
has been extended only to women who are in some kind of
employment and not to the females who are still pursuing their
education. As a developing nation, we strive to compete with these
developed nations in every sphere and that is only possible if we
develop our human resource to the fullest. India as a country is
already facing very low representation of females in different
spheres. In such circumstances, non-extension of maternity benefit
to female student could further increase this already existing
gender disparity.
H. BECAUSE the Parliament in order to protect the rights of women
who had long suffered due to pregnancy, child-birth and post-natal
care enacted the Maternity Benefit Act, 1961. This beneficial
legislation provides several benefits and incentives to women who
are in employment and several relaxations including maternity
leave etc. Ironically, such benefits are not provided to women who Ba:r & Bench (www.barandb,ench.com)
are pursuing their qualifying degrees from educational institutions
which will enable them to become a part of the workforce. The
State cannot discriminate between women who are working and
women who are studying. The proviso to Section 2 of the
Maternity Benefits Act states that the State Government may with
the approval of the Central Government, declare that all or any of
the provisions of the Act shall apply to any other establishment or
class of establishments, industrial, commercial, agricultural or
otherwise. Taking recourse to this proviso, the State of Haryana
has started proving maternity leave of 45 days to married female
students in state universities and colleges. This initiative of the
government is laudable but this kind of policy should be
implemented at pan-India level. The benefits of the above-
mentioned legislation ought to also apply to women who are
studying.
I. BECAUSE the University Grants Commission (UGC) vide its
press release dates 12.04.2016 granted allowed maternity
leave/child care leave of 240 days to the students of M.Phil./Ph.D.
while as discussed above there is no such provision for graduate
and post-graduate students in different fields. This differentiation
between the two classes of students is arbitrary and contrary to the
principle of equality laid down in Article 14 of the Constitution.
J. BECAUSE the goal of attendance norms is to increase academic
discipline but its effect should not be to disproportionately deprive
women of the opportunity to empower themselves. If any female
candidate is deprived or detained in any of the semester just on the Ba:r & Bench (www.barandb,ench.com)
ground that she could not attend classes being in the advanced
stage of pregnancy or due to the delivery of the child or due to
post-natal care, then such an act on the part of any of the university
or college would not only be completely in negation of the
conscience of the Constitution of India but also of the women
rights and gender equality this nation has long been striving for. It
is a saying that 'Motherhood is priced of God, at price no man may
dare to lessen or misunderstand'. By not granting these students
relaxation, we will be making motherhood a crime which no
civilized democracy in the history of mankind has ever done or
will ever do.
K. BECAUSE presently there are no rules/regulations regarding
women students claiming relaxation on ground of maternity relief.
Hon’ble Supreme Court has stated in Vishakha v State of
Rajasthan (1997) 6 SCC 241 declared sexual harassment of a
working woman at her workplace as amounting to violation of
Articles 14, 15 and 21 of the Constitution. The court, in this case
laid down elaborate guidelines to prevent harassment of women at
workplace in the absence of an enacted legislation. Similar
guidelines have been laid down by the court in several other cases
including Vineet Narain v Union of India (1998) 1 SCC 226 where
the court laid down guidelines for independence of Vigilance
Commission, in Vishwa Jagriti Mision v. Central Government, JT
2001 (6) SC 151, the Supreme Court issued guidelines against Ba:r & Bench (www.barandb,ench.com)
ragging in educational institutions, in Common Cause (A Regd.
Society) v. Union Of India (2018) 5 SCC 1, the Supreme Court
laid down elaborate guidelines related to living will in absence of
any enacted law. Keeping these precedents in mind, this Hon’ble
court in the present case may lay down elaborate guidelines for
formation of rules/regulations granting relaxation in attendance to
female students on account of pregnancy, childbirth or post-natal
care. Previously, in several instances Hon’ble Supreme Court has
directed the government or the responsible government agencies to
formulate a policy or enact a law where there is none. In its order
dated 09.05.2014 in the matter of J.K. Raju v. State of Andhra
Pradesh W.P(C) 631/2004, the apex court directed the government
of State of Andhra Pradesh to provide toilets and drinking water to
children studying in primary schools. Further, in the case of
Gainda Ram v. MCD reported in (2010) 10 SCC 715, Hon’ble
Supreme Court directed the Central Government to enact a law to
protect the fundamental right of street hawkers and vendors.
Therefore, in in the present case as well, the court can direct the
respondents to adopt/ formulate suitable guidelines in consultation
with each other for providing relaxation in attendance norms for
women who are unable to fulfil the requisite attendance criteria
owing to pregnancy, child-birth and post-natal care.
18. The Petitioner has not filed any other Writ Petition in any of the
High Courts or the Supreme Court of India.
PRAYER In view of the aforesaid facts and circumstances, it is most respectfully prayed that the Hon’ble Court may be graciously pleased to: Ba:r & Bench (www.barandb,ench.com)
a) Issue a writ of mandamus directing the Respondents to
adopt/ formulate suitable guidelines in consultation with
each other for providing relaxation in attendance norms for
women who are unable to fulfil the requisite attendance
criteria owing to pregnancy, child-birth and post-natal care;
or in the alternative issue guidelines to that effect;
b) Issue a writ of mandamus directing Respondent Nos. 1 to 3
to appoint a Three Member High Level Committee headed
preferably by a retired lady Judge of the Supreme Court of
India to make recommendations for securing and
safeguarding the rights of women studying in educational
institutions who undergo pregnancy, child-birth and post-
natal care situations which prevent them from attending
classes; and
c) Issue such other writ, direction or order which this Hon’ble
Court may deem fit and proper under the facts and
circumstances of the case.
For which act of kindness this humble Petitioner as in duty shall ever pray.
Petitioner Through KSA Law Offices LLP Advocates 385, Lawyer’s Chamber-II Delhi High Court New Delhi-110003 Mob: 9311399002 E-mail: [email protected]
Place – New Delhi Date - 14.02.2020 Ba:r & Bench (www.barandb,ench.com)
IN THE HIGH COURT OF DELHI AT NEW DELHI (EXTRAORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (CIVIL) NO. OF 2020
PUBLIC INTEREST LITIGATION
IN THE MATTER OF:
KUSH KALRA …PETITIONER
VERSUS
UNION OF INDIA & ORS. …RESPONDENTS
APPLICATION UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 FOR SEEKING EXEMPTION FROM FILING TYPED COPIES OF DIM/ILLEGIBLE ANNEXURES
Most Respectfully Showeth:
1. That the Petitioner has filed accompanying Writ Petition in the
nature of PIL before this Hon’ble Court.
2. That there are certain annexures which are dim or suffer from
margin, for which the Petitioner seeks liberty of this Hon’ble
Court, for which the present Exemption Application is being filed.
3. That the Petitioner undertakes to submit the certified copy of the
Annexures as and when same are available with him.
4. That the present Application is being moved bonafide and the
Petitioner seeks exemption from this Hon’ble Court.
PRAYER
In light of the aforesaid submissions it is respectfully prayed that this
Hon’ble Court may be pleased to:- Ba:r & Bench (www.barandb,ench.com)
(a ) Grant exemption from filing typed copies of annexures on account of any dimness and/or illegibility.
(b) Pass any other such order/orders as the Hon’ble Court may deem
fit in the interests of justice.
Petitioner
Through
KSA Law Offices LLP Advocates 385, Lawyer’s Chamber-II Delhi High Court New Delhi-110003 Mob: 9311399002 E-mail: [email protected]
Place – New Delhi Date - 14.02.2020 Ba:r & Bench (www.barandb,ench.com)
IN THE HIGH COURT OF DELHI AT NEW DELHI (EXTRAORDINARY ORIGINAL CIVIL JURISDICTION) CM NO. ______OF 2020 IN WRIT PETITION (CIVIL) NO. ______OF 2020 PUBLIC INTEREST LITIGATION IN THE MATTER OF:
KUSH KALRA … PETITIONER VERSUS UNION OF INDIA & ORS. …RESPONDENTS AFFIDAVIT
I, Kush Kalra, S/o Shri Vijay Kalra, aged about 32 years, R/o 2/16B,
Jangpura A, New Delhi 110014 presently at New Delhi, do hereby solemnly affirm and state as under:
1. That I am Petitioner in the above said matter and am conversant
with the facts and circumstances of the case, as such competent to
swear this affidavit.
2. That the contents of accompanying Application under Section 151
CPC for exemption from filing Dim / Illegible copies of Annexures
has been drafted by my counsel under my instructions and same
are true and correct to the best of my knowledge, which are not
repeated here for the sake of brevity.
3. That it is my true and correct statement.
DEPONENT VERIFICATION: Verified at New Delhi on this ___ day of February, 2020 that the contents of the above Affidavit are true and correct to my knowledge, that no part of it is false and nothing material has been concealed therefrom.
DEPONENT