"Pregnancy shouldn't hinder employment opportunities" - Kerala Hight Court
The Kerala High Court has ruled that having a family is perfectly normal and that women should not be prevented from pursuing careers in public service because they are pregnant or have recently given birth.
Gender equality, the court ruled, must be grounded in reality, and in order to close the gender gap, situational analysis is key. Refusing to acknowledge and address situational realities might result in missed opportunities due to biological considerations.
"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 public appointments and women will have to face disadvantages of carrying the womb as the period of maternity may operate on her disadvantage," the judge stated.
With their petitions for permission to apply for the position of Assistant Professor in Radiodiagnosis, Drs. Athira P. of Kozhikode and Arya G. Krishnan of Kollam were heard by a Division Bench of Justices A. Muhamed Mustaque and Shoba Annamma Eapen. The order was issued on these grounds.
One of the prescribed qualifications is that candidates should have one year of experience as a Senior Resident in Radiodiagnosis in an NMC recognised Medical College after acquiring a post-graduate degree.
Due to a lack of eligibility as of the application deadline, they were unable to submit their applications for the positions advertised by the PSC. They went to the Health and Family Welfare Department's Secretary and the Director of Medical Education to explain that they had to take maternity leave, which caused the residency programme to run behind schedule.
Therefore, they may be permitted to apply for the post as they will complete their senior residency programme before the date of the written examination proposed for the selection. The government did not respond and they approached the Kerala Administrative Tribunal. Unfortunately, their appeal to apply for the post was rejected by the tribunal. Therefore, a petition was filed before the HC.
Motherhood also brings about numerous drawbacks, according to the Division Bench. Uneven representation of the sexes could emerge from this. Motherhood has certain challenges, and ignoring them will lead to discrimination. The goal of the space that takes into account women's lived experiences is to remove obstacles so that they may compete with men on an equal footing.
Substantive approaches aim to remove any obstacles that women may face on their path to parenting. When drafting laws and regulations pertaining to public employment, it is imperative that they take into account the unique circumstances faced by women due to childbirth.
The time constraint that needs to be prioritised makes it impossible to respond to many scenarios that women may face during pregnancy by giving them equal opportunities. After addressing women's individual rights, the State or PSC must strike a balance between public employment interests and women's individual rights. The very act of being unintentional could lead to subtle forms of bias.
When formulating policies and procedures pertaining to public employment, the court noted that inherent biological disparities could lead to prejudice, either intentional or unintentional. Equality is guaranteed in the constitution in both a formal and substantive sense.
Even if women are on an equal footing with men when it comes to consideration in public affairs and prospects for public employment, the court ruled that biological disparities can make it harder for women to have fair opportunities in life.
The court granted permission to the petitioners to apply for the post. "we make it clear that the petitioners will have to produce the experience certificate within such time as PSC insists upon them," the Divisions Bench stated.