Saumya Tiwari vs State Of U.P.

And 3 Others on 16 December, 2021

Saumya Tiwari vs State Of U.P. And 3 Others on 16 December,

2021

Author: Ajay Bhanot

Bench: Ajay Bhanot

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Court No. - 66

Case :- WRIT - C No. - 20885 of 2021

Petitioner :- Saumya Tiwari

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Uday Narain Singh,Lal Dev

Counsel for Respondent :- C.S.C.,Rohit Pandey

Hon'ble Ajay Bhanot,J.

1. The narrative is being structured in the following framework to facilitate the discussion:

A. Introduction B. Submissions C. Facts D. Issues for consideration E. Statutory

perspectives:

a.

University statutes b.

Analogous provisions c.

International Instruments d.

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Constitutional provisions F. Case laws G. Evolution of Fundamental Rights legislative

lag and executive inertia H Education & Universities I. Conclusions & Directions A.
Introduction

2. The petitioner asserts that she could not successfully complete B.Tech. (Electronics and
Communication) course in the period prescribed in the University Regulations, as she was not
granted maternity leave nor provided maternity support benefits as an expectant mother and as a
new mother. She claims entitlement to an additional chance in an enlarged time period to appear in
the two papers of B. Tech. (Electronics & Communication) which she could not clear in the regular
academic calender.

B. Submissions

3. Sri Lal Dev Chaurasiya, learned counsel and Sri Uday Narain Singh, learned counsel for the
petitioner submit that the petitioner could not appear in the last chance for qualifying the papers
(which she could not clear in the regular academic semesters) due to her pregnancy and post natal
recovery issues. The University authorities did not grant any relaxation and support to the petitioner
during her pregnancy and immediately after she delivered a baby child. The pre natal and post natal
conditions imposed limitations upon the petitioner which precluded her from competing equally
with other students.

4. The petitioner has a fundamental right to various maternity benefits and reliefs. The action of the
University in denying the petitioner maternity relief, benefits and support has violated her
fundamental rights guaranteed under Articles 14, 15 and 21 of the Constitution of India and has
permanently blighted her academic future.

5. Learned counsels submitted various authorities of the Constitutional Courts, Hon'ble Supreme
Court & Hon'ble High Courts, international instruments and analogous statutes, which define and
regulate maternity rights.

6. Sri Rohit Pandey, learned counsel assisted by Ms. Shambhavi Tiwari, learned counsel for the
respondents-University contends that there is no provision for grant of any maternity benefits or
reliefs to students under the Regulations or Ordinances of the University. The University cannot act
contrary to its statutes and regulations framed thereunder. The University cannot be faulted for not
granting any maternity benefits or support to the petitioner.

7. Shri Ajal Krishna, learned counsel for the AICTE has filed an affidavit on behalf of the regulatory
body. Learned counsel for the AICTE contends that AICTE does not oppose the creation of scheme
for grant of maternity benefits to undergraduate students by the University-respondent nos. 2 and 3.
Further it is for the University to create the desired Regulations for which it is adequately
empowered.

8. Learned Standing Counsel for the State of U.P. contends that the creation of Regulations for grant
of maternity benefits lies within the domain of the University.

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9. Shri Paras Nath Rai, learned Central Government Standing Counsel submits that the Government
of India had sent a communication to the University Grants Commission, New Delhi, to intimate the
action taken in the matter. In response to the aforesaid communication, the University Grants
Commission, New Delhi, has passed an order on 14.12.2021, requesting the Vice Chancellors of all
Universities in the country to frame appropriate rules/norms with regard to the grant of maternity
leave and any other facilities/relaxations deemed necessary for women students pursuing
undergraduate and postgraduate programme. and also provide necessary relaxation to the women
students.

10. Shri Paras Nath Rai, learned Central Government Standing Counsel further contends that the
University Grants Commission, New Delhi, as well as Union of India do not contest the claim of the
petitioner.

11. Facts of the case are undisputed and lie in a narrow compass. Pure questions of law arise for
consideration in this writ petition. With consent of parties, the matter is being decided finally.

C. Facts

12. The petitioner was admitted to the B.Tech. (Electronics and Communication) course in the
academic year 2013-14, in Krishna Institute of Technology, Kanpur, which is affiliated to Dr. A. P. J.
Abdul Kalam Technical University, Uttar Pradesh, Lucknow (hereinafter referred to as the
'University').

13. The time period for completion of B.Tech. course in Electronics and Communication, as
provided in the Ordinances of the University is 7 years. The relevant Ordinance is extracted
hereunder:

"4.3 The maximum time allowed for a candidate admitted in 1st/IIIrd semester (for
diploma holders) for completing the B.Tech course shall be 7 (seven)/5(five) years
respectively, failing which he/she shall not be allowed to continue for his/her B.Tech
degree."

14. The petitioner cleared all the semester examinations successfully, but did not qualify the subjects
of Signals and Systems in the 3rd semester and Engineering Mathematics-II in the 2nd Semester
examination in the regular academic calender.

15. The petitioner could not complete the B.Tech (Electronics & Communication) course by the
academic session 2019-2020, as stipulated in the Ordinances.

16. The exam schedules of the last two opportunities given to the petitioner for appearing in the said
papers are as follows is as follows:

I. "Signals and System--3rd semester -- B.Tech. (Electronics and Communication) --

December 2019 Engineering Mathematics-II -- 2nd Semester -- B.Tech. (Electronics

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and Communication) -- September 2020"

II. Signal and System (3rd Semester), February, 2021, Engineering Mathematics (2nd
Semester) July, 2021.

17. The petitioner could not appear and avail the chances as she was an expectant mother. The
petitioner gave birth to a child on 22nd December, 2020. Thereafter she experienced post natal
issues which delayed her recovery.

18. The University refused to give her an additional chance which catered to her maternity period
and post natal recovery time. There are no provisions for grant of maternity leave or any relaxation
for expectant and new mothers in the Uttar Pradesh Technical Universities Act, 2000, Ordinances,
Regulations or Statutes which govern and regulate functioning of the University.

D. Issues for consideration

19. The issues which arise for consideration are as under:

I. Whether the right of reproductive choice of a woman is a fundamental right if so

the implications of the same on the current controversy?

II. Whether the petitioner can be denied maternity benefits solely on the footing that
no provision exists in the statutes or Ordinances or Regulations of the University to
provide such relaxation?

III. What is the nature of maternity benefits and relief which can be granted to the
petitioner at this stage?

E. Statutory Perspectives

(a) University Statutes

20. Section 29 of the Uttar Pradesh Technical Universities Act, 2000 empowers the Executive
Council to frame new Regulations or amend or repeal Regulations made by the State in the first
instance. The provision is reproduced below:

"Section 29.(1) The First Regulations of the University shall be made by the State
Government by notification.

(2) The Executive Council may, from time to time, make new or additional
Regulations or may amend or repeal the Regulations referred to in sub-section (1):

Provided that the Executive Council shall not make, amend or repeal any Regulation
affecting the status, power or constitution of any authority of the University until

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such authority has been given a reasonable opportunity to express its opinion in
writing on the proposed changes and any opinion so expressed has been considered
by the Executive Council.

(3) Notwithstanding anything contained in the foregoing sub-sections, the State

Government may in order to implement any decision taken by it in the interest of
learning, teaching or research on the basis of any suggestion or recommendation of
the University Grants Commission or All India Council for Technical Education or
the State or National Education Policy require the Executive Council to make new or
additional Regualtions or amend or repeal the Regulations referred to in sub-section
(1) or sub-section (2) within a specified time and if the Executive Council fails to
comply with such requirement the State Government may make new or additional
Regulations or amend or repeal the Regulations referred to in sub-section (1) of
sub-section (2)."

21. The relevant Regulations which advise special arrangements for women are extracted below:

"4.12 Subject to the provisions of the Act and Regulations, the Academic Council shall
have the following powers:

(e) to advise special arrangements, if any for the teaching of female students and
students of weaker section of society;

(emphasis supplied)

(g) to recommend to the Executive Council for the Ordinances regarding examinations of the
University;

(h) to prepare Academic calendar.

(p) to perform, in relation to academic maters, all such duties and do all such act as may be
necessary for the proper executive by carrying out of the provisions of the Act and the Regulations."

22. The Academic Council of the University is further vested with the plenary following powers:

"4.10 The Council shall exercise all the powers of the University not otherwise
provided by the Act, Regulations, and Ordinances for the fulfillment of the objects of
University."

"23. The Academic Council shall have the power to relax any provision provided in the ordinance in
any specific matter/situation subject to the approval of Executive Council of the University and such
decision(s) shall be reported to the Chancellor of the University."

(b) Analogous Provisions

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23. The Statutes, Ordinances, Regulations, directions or orders of the Academic Council and
Executive Council of the University are silent on grant of maternity leave/support to expectant and
new mothers. In view of the aforesaid statutory and executive void, analogous provisions created by
various universities and academic regulatory bodies in India, as well as foreign universities which
are sensitive to the rights of expectant mothers' students' and new parents will support the
discussion.

24. Cambridge University has taken out a detailed brochure for students who are expectant parents.
The flow chart which is part of brochure sums up the roles of various stake holders as well as
responsibilities of University authorities and the procedure to be followed is drawn hereinunder:

"K. Pregnancy/Maternity/Paternity/Adoption Leave flow diagram"

25. Similarly, the University of Oxford has a comprehensive frame work for entitlement of parental
leave, arrangements for return to study, and supportive measures for pregnant students and new
mothers.

26. The provisions of the maternity leave under the Oxford University are reproduced below:

"3. MATERNITY LEAVE The University's policy has been harmonised with the
Research Councils' framework and clearly differentiates maternity leave from
suspension of status for medical or disciplinary reasons. It aims to ensure consistent
and fair treatment of pregnant students and new mothers and provides new mothers
with the right to a protected period of leave after the birth.

3.1. Students should notify their college, department, supervisor or Director of

Graduate Studies of their pregnancy as soon as possible, and preferably no later than
the 15th week before the expected week of childbirth. Earlier notification may be
necessary in some cases, for example where a student works in a potentially
hazardous environment. If this is the case, the department in question must ensure
that it has published this information and drawn students' attention to it.

3.2. Risk assessments must be made where the work environment (e.g. laboratory,
clinic) might pose a threat to a pregnant student. The University Occupational Health
Service (UOHS) recommends that departments seek advice from their Departmental
Safety Officer, the Area Safety Officer or the Safety Office. The OUHS can also assist
with health queries relating to pregnancy and breastfeeding at work. This may
require a consultation with a doctor or nurse and a visit to the workplace (email
enquiries@uohs.ox.ac.uk).

3.3. In conjunction with the student, the college and department should draw up a
student support plan to be reviewed at key stages during pregnancy and maternity.
This will help coordinate support and ensure students' needs are met during
pregnancy, following the birth and on the student's return to studies.

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27. Oxford university contemplates grant of one full year leave to students who give birth. The said
provision is extracted as under:

"Undergraduate and postgraduate taught students 3.5. Students who give birth may
choose to suspend their status before recommencing their studies. This will normally
last one full year so that the student may return to study at the same point at which
they suspended."

28. The student is not left to fend for herself even after maternity leave. During the maternity leave
the students of the Oxford University do not snap their academic links and are required to maintain
them in order to plan all their return to study. The relevant provisions are as follows:

"Planning for return to study 3.12. Undergraduate and postgraduate students on

maternity leave should be encouraged by their college and/or department to
maintain occasional contact with their tutor and/or supervisor so that arrangements
may be made for their return to study. This is likely to involve a limited amount of
academic guidance and preparation, as necessary in each case.

3.13. Timely arrangements should be made to facilitate students' return to study after
maternity leave, including a full assessment of their requirements in relation to e.g.
training, updating, monitoring and additional learning support. Typically this
assessment would be carried out by a college tutor, supervisor or other relevant
academic staff.

3.14. Risk assessments must also be made where the work environment might pose a
threat to a breastfeeding mother (see section 3.2 above).

3.15. If ill-health prevents a postgraduate student from returning to work after

completing their maximum period of maternity leave, this should be treated as
sickness absence and further suspension of status should be sought and notifications
made accordingly (i.e. to the funding body). If a student is unable to return to work
due to the illness of their child, they should seek a further suspension of status, if
necessary by application to the Education Committee.

Undergraduate students 4.1. Some undergraduate students returning to study after

the birth of a child may find it difficult to pursue their course at the normal pace.
Under such circumstances it may be possible to extend the duration of their studies,
typically by studying the Final Honour School over one additional year. Such a
proposal requires endorsement from both the college and the faculty or department.
The student's college can then apply to Education Committee to request dispensation
from the examination regulations concerning overstanding for honours, the timing of
multi-University of Oxford Policy on Student Maternity, Extended Paternity,
Adoption and Shared Parental Leave part examinations, or if it is proposed to split
Finals over two years. Approval for the extension of study will also have to be

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obtained from Student Finance England or the relevant regional body. Applications
for remission of the additional year's university fees will be considered by the Fees
Panel on a case-by-case basis."

29. Similarly the University Grants Commission, New Delhi, have set up minimum standards for
supportive facilities to expectant parents under UGC (Minimum Standards and Procedures for
Award of M.Phil./Ph.D. Degrees) Regulations-2016. The said Regulations contemplate grant of
maternity leave and other relaxations to M.Phil/Ph.D. students The relevant provisions state thus:

"Duration of the Programme:

4.4.......In addition, the women candidates may be provided Maternity Leave/Child

Care Leave once in the entire duration of M.Phil/Ph.D. for up to 240 days."

30. Guidelines for maternity and paternity leave for fellowship students have been framed by the All
India Council for Technical Education for Ph.D. Programme, which are as follows:

"9.0. Terms and Conditions:-

m) Leave:-

(ii) Candidates are eligible for maternity/ Paternity leave as per GoI norms issued
from time to time at full rates of fellowship etc. once during the tenure of their award.
However, maximum duration of fellowship will not be extended under any
circumstances."

31. All India Council for Technical Education has also framed maternity leave guidelines for Post
Graduate Scholarship Schemes in the year 2021:

"1.4 Other Entitlements:

Maternity leave :

Candidates are eligible for maternity/ Paternity leave as per Govt. of India norms
issued from time to time at full rates of fellowship etc. once during the tenure of their
award. However maximum duration of fellowship will not be extended in any
circumstances."

32. The Ordinances of the University of Allahabad also contemplate grant of maternity leave/child
care leave for the Doctor of Philosophy students. Proviso to Ordinance 4(a) which provides for the
same is stated below:

"4 (a) Subject to the provisions of this Ordinance and the Regulations, each candidate
shall, upon admission and enrolment to the Ph.D. programme, pursue a course of

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research of a duration of not less than twenty-four months in residence within the
area referred to in sub-clause (b) of clause 1, and shall regularly pay the prescribed
annual and other fees up to the time he withdraws from his enrolment, or such
enrolment is terminated, or he duly submits his thesis to the University. The
minimum duration of submitting the thesis is 36 months from the date of enrolment
and maximum period of submitting the thesis is 72 months from the date of
enrolment.

Provided that the Women Candidates and Persons with Disability may be allowed a
relaxation of two years for Ph.D. in the maximum duration. In addition, the Women
candidate may be provided maternity leave/childcare leave once in the entire
duration of Ph.D. for upto 240 days."

(emphasis supplied)

33. Ordinances of the Allahabad University which provide for grant of maternity leave for various
other courses are extracted hereinbelow:

"9 (d). In the case of a married woman student who is granted maternity leave, in
calculating the total number of lectures delivered in the College or in the University,
as the case may be, for her course of study in each academic year, the number of
lectures in each subject delivered during the period of her maternity leave shall not
be taken into account:

Provided that Post-graduate Degree students under the Faculty of Medical Sciences
who apply for maternity leave either in I year or in II year, may be allowed the
maternity leave for a period not exceeding 3 months in an academic year but such
students will be required to complete the duration of the course as regular students
as required in the Ordinance and the students will be permitted to submit the thesis
or to take the written examination, as the case may be, in January instead of August
that year."

(c) International Instruments

34. International covenants, treaties and instruments reflect the growth of international law.
Various international instruments proclaim the dignity of motherhood. These international
instruments evidence a consensus of shared human values and universalisation of human rights in
the comity of nations. India has cemented her international standing by being a signatory to such
forward looking international instruments. Indian courts have faithfully implemented the
international obligations through judicial pronouncements. The strong commitment of the
constitutional courts in India to the cause of women and motherhood in consistent with the
constitutional scheme and various international instruments.

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35. A scholarly discussion on the importance of discharging national obligations under various
international instruments is found in Pratap Singh vs. State of Jharkhand1.

36. Some relevant international instruments and provisions of the Constitution of India are
extracted below:

I. United Nation Universal Declaration on Human Rights Article 25(2):

"2. Motherhood and childhood are entitled to special care and assistance. All
children, whether born in or out of wedlock, shall enjoy the same social protection."

II. International Convention on Economic and Cultural Rights.

Need for supportive measures to expectant mothers both before and after child birth as provided in
Article 10 (2):

"2. Special protection should be accorded to mothers during a reasonable period

before and after childbirth. During such period working mothers should be accorded
paid leave or leave with adequate social security benefits."

III. Convention on elimination of all forms of discrimination against women:

"Article I For the purposes of the present Convention, the term "discrimination
against women" shall mean any distinction, exclusion or restriction made on the
basis of sex which has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status, on a basis of
equality of men and women, of human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field."

"Article 10 States Parties shall take all appropriate measures to eliminate

discrimination against women in order to ensure to them equal rights with men in
the field of education and in particular to ensure, on a basis of equality of men and
women: (a) The same conditions for career and vocational guidance, for access to
studies and for the achievement of diplomas in educational establishments of all
categories in rural as well as in urban areas; this equality shall be ensured in
pre-school, general, technical, professional and higher technical education, as well as
in all types of vocational training;

(b) Access to the same curricula, the same examinations, teaching staff with
qualifications of the same standard and school premises and equipment of the same
quality;

(c) The elimination of any stereotyped concept of the roles of men and women at all
levels and in all forms of education by encouraging coeducation and other types of

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education which will help to achieve this aim and, in particular, by the revision of
textbooks and school programmes and the adaptation of teaching methods;

(d ) The same opportunities to benefit from scholarships and other study grants;

(e) The same opportunities for access to programmes of continuing education, including adult and
functional literacy programmes, particulary those aimed at reducing, at the earliest possible time,
any gap in education existing between men and women;

(f) The reduction of female student drop-out rates and the organization of programmes for girls and
women who have left school prematurely;

(g) The same Opportunities to participate actively in sports and physical education;

(h) Access to specific educational information to help to ensure the health and well-being of
families, including information and advice on family planning."

(d) Constitutional Provisions:

37. Articles 42 of the Constitution of India provides for humane conditions of work and maternity
relief.

"42. Provision for just and humane conditions of work and maternity relief.-

The State shall make provision for securing just and humane conditions of work and
for maternity relief."

38. Other relevant provisions are Article 41 and Article 43 of the Constitution of India. Article 15(3)
prohibits discrimination on the basis of sex.

F. Case Laws:

39. The Supreme Court in Suchita Srivastava and others Vs. Chandigarh Administration2, gave
widest amplitude to a woman's right to make reproductive choices. Reproductive choices were
construed as inherent to a woman's right to privacy, dignity and bodily integrity which are relatable
to Article 21 of the Constitution of India. The Supreme Court then declined to put any restriction on
such choices by holding forth:

"22.There is no doubt that a woman's right to make reproductive choices is also a

dimension of `personal liberty' as understood under Article 21 of the Constitution of
India. It is important to recognise that reproductive choices can be exercised to
procreate as well as to abstain from procreating. The crucial consideration is that a
woman's right to privacy, dignity and bodily integrity should be respected. This
means that there should be no restriction whatsoever on the exercise of reproductive

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choices such as a woman's right to refuse participation in sexual activity or

alternatively the insistence on use of contraceptive methods. Furthermore, women
are also free to choose birth-control methods such as undergoing sterilisation
procedures. Taken to their logical conclusion, reproductive rights include a woman's
entitlement to carry a pregnancy to its full term, to give birth and to subsequently
raise children...."

40. R. Rajagopal Vs. State of Tamil Nadu and others3 was the precursor to Suchita Srivastava
(supra), wherein the right to motherhood, procreation and child bearing was found to be relatable to
the fundamental right vested by Article 21 of the Constitution of India. R. Rajagopal (supra) was
cited with approval while expounding the following proposition in Govind Vs. State of Madhya
Pradesh and others4:

"9.....Any right to privacy must encompass and protect the personal intimacies of the
home, the family, marriage, motherhood, procreation and child-rearing. This
catalogue approach to the question is obviously not as instructive as it does not give
analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the
only suggestion that can be offered as unifying principle underlying the concept has
been the assertion that a claimed right must be a fundamental right implicit in the
concept of ordered liberty...."

41. Justice K. S. Puttaswamy (Retd.) Vs. Union of India5 following Suchita Srivastava (supra) firmly
and irrevocably reiterated that human dignity is a fundamental right under Article 21 of the Indian
Constitution. With customary eloquence, in K.S. Puttaswamy (supra) Dr. D. Y. Chandrachud, J.,
speaking for the learned Constitution Bench upon consideration of the judicial precedents in point
distilled the concept of human dignity and its place in part III of the Constitution:

"Jurisprudence on dignity "108. Over the last four decades, our constitutional
jurisprudence has recognised the inseparable relationship between protection of life
and liberty with dignity. Dignity as a constitutional value finds expression in the
Preamble. The constitutional vision seeks the realisation of justice (social, economic
and political); liberty (of thought, expression, belief, faith and worship); equality (as a
guarantee against arbitrary treatment of individuals) and fraternity (which assures a
life of dignity to every individual). These constitutional precepts exist in unity to
facilitate a humane and compassionate society. The individual is the focal point of the
Constitution because it is in the realisation of individual rights that the collective
well-being of the community is determined. Human dignity is an integral part of the
Constitution. Reflections of dignity are found in the guarantee against arbitrariness
(Article 14), the lamps of freedom (Article 19) and in the right to life and personal
liberty (Article 21).

118. Life is precious intself. But life is worth living because of the freedoms which
enable each individual to live life as it should be lived. The best decisions on how life
should be lived are entrusted to the individual. They are continuously shaped by the

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social milieu in which individuals exist. The duty of the State is to safeguard the
ability to take decisions. "Life" within the meaning of Article 21 is not confined to the
integrity of the physical body. The right comprehends one's being in its fullest sense.
That which facilitates the fulfillment of life is as much within the protection of the
guarantee of life.

119. To live is to live with dignity. The draftsmen of the Constitution defined their
vision of the society in which constitutional values would be attained by emphasising,
among other freedoms, liberty and dignity. So fundamental is dignity that it
permeates the core of the rights guaranteed to the individual by Part III. Dignity is
the core which unites the fundamental rights because the fundamental rights seek to
achieve for each individual the dignity of existence. Privacy with its attendant values
assures dignity to the individual and it is only when life can be enjoyed with dignity
can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core
value which the protection of life and liberty is intended to achieve."

42. Maternity relief was embedded in the minimum requirement for dignified life in Bandhua Mukti
Morcha Vs Union of India (UOI) and others6:

"10. Moreover, when a complaint is made on behalf of workmen that they are held in
bondage and are working and living in miserable conditions without any proper or
adequate shelter over their heads, without any protection against sun and rain,
without two square meals per day and with only dirty water from a nullah to drink, it
is difficult to appreciate how such a complaint can be thrown out on the ground that
it is not violative of the fundamental right of the workmen. It is the fundamental right
of every one in this Country, assured under the interpretation given to Article 21 by
this Court in Francis Mullen's case, to live with human dignity, free from exploitation.
This right to live with human dignity, enshrined in Article 21 derives its life breath
from the Directive Principles of State Policy and particularly clauses (e) and (f) of
Article 39 and Article 41 and 42 and at the least, therefore, it must include protection
of the health and strength of workers men and women, and of the tender age of
children against abuse, opportunities and facilities for children to develop in healthy
manner and in conditions of freedom and dignity, educational facilities, just and
humane conditions of work and maternity relief."

(emphasis supplied)

43. The importance of dignified environment for motherhood in pre or post natal period was
propounded in the context of the Maternity Benefit Act 1961 and in the backdrop of Articles 39, 42
and 43 of the Constitution of India in Municipal Corporation of Delhi Vs Female Workers (Muster
Roll) and Another7: The Supreme Court in Municipal Corporation of Delhi (supra) set its face
against victimization of pregnant women:

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"33. A just social order can be achieved only when inequalities are obliterated and
everyone is provided what is legally due. Women who constitute almost half of the
segment of our society have to be honoured and treated with dignity at places where
they work to earn their livelihood. Whatever be the nature of their duties, their
avocation and the place where they work; they must be provided all the facilities to
which they are entitled. To become a mother is the most natural phenomena in the
life of a woman. Whatever is needed to facilitate the birth of child to a woman who is
in service, the employer has to be considerate and sympathetic towards her and must
realise the physical difficulties which a working woman would face in performing her
duties at the work place while carrying a baby in the womb or while rearing up the
child after birth The Maternity Benefit Act, 1961 aims to provide all these facilities to
a working woman in a dignified manner so that she may overcome the state of
motherhood honourably, peaceably, undeterred by the fear of being victimised for
forced absence during the pre or post-natal period."

(emphasis supplied)

44. The High Court of Kerala in Mini K.T. Vs Senior Divisional Manager L.I.C.8 emphasized the
need for an institutional support system for expectant mothers in light of our civilisational values,
cultural ethos and constitutional law and held thus:

"23.Coming back to the question of dignity, those dignity has to be understood in the
societal background. Indian cultural and traditional practices would go to show that
motherhood is an essential part of family responsibility. International Human Rights
Law thus protect dignity of woman and also family. The Constitution thus demand
interpretation of its WPC 22007/2012 provisions in that background. Person-hood of
a woman as mother is her acclaim of individuality essentially valued as liberty of her
life. This was so designed by culture, tradition and civilisation. Mother's role in taking
care of the child has been considered as an honour; she enjoyed such status because
of her position in respect of the child. If on any reason she could not attend her
workplace due to her duties towards child (compelling circumstances), the employer
has to protect her person-hood as "mother". If not that, it will be an affront to her
status and dignity. No action is possible against a woman employee for her absence
from duty on account of compelling circumstances for taking care of her child. No
service Regulations can stand in the way of a woman for claiming protection of her
fundamental right of dignity as a mother. Any action by an employer can be only
regarded as a challenge against the dignity of a woman. Motherhood is not an excuse
in employment but motherhood is a right which demands protection in given
circumstances. What employer has to consider is whether her duty attached WPC
22007/2012 to mother prevented her from attending employment or not. As already
adverted above, motherhood is an inherent dignity of woman, which cannot be
compromised.

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24. A mother cannot be compelled to choose between her motherhood and

employment. A woman employee is not expected to surrender her self respect fearing
action against her for not being able to attend duty for compelling family
responsibility. John Rawls in the book, "A Theory of Justice", identifies that in a just
Society, self respect is not subject to political bargaining while parties in original
position thrust for justice as fairness. He describes self respect thus:

"67. SELF-RESPECT, EXCELLENCES, AND SHAME ...We may define self-respect

(or self-esteem) as having two aspects. First of all, as we noted earlier, it includes a
person's sense of his own value, his secure conviction that his conception of his good,
his plan of life, is worth carrying out. And second, self-respect implies a confidence in
one's ability, so far as within one's power, to fulfill one's intentions. When we feel that
our plans are of little value, we cannot pursue them with pleasure or take delight in
their execution. Nor plagued by failure and self- doubt can we continue in our
endeavors. It is clear then why self-respect is a primary good. Without it nothing may
seem worth doing, or if some things have value for us, we lack the will to WPC
22007/2012 strive for them. All desire and activity becomes empty and vain, and we
sink into apathy and cynicism. Therefore the parties in the original position would
wish to avoid at almost any cost the social conditions that undermine self-respect.
The fact that justice as fairness gives more support to self-esteem than other
principles is a strong reason for them to adopt it."

26. In patriarchy, woman belonged to kitchen. It needs to be realised that girls do have a dream and
woman do have a vision, and motherhood cannot be seen as a burden on them to pursue such
dreams and visions. The court while considering amplitude and meaning of life under Article 21 of
the Constitution has to embrace its full meaning in the societal background on which the court is
called upon to WPC 22007/2012 decide such disputes. Thus, a woman employee cannot be thrown
out from service for remaining absent on account of taking care of child, if such taking care is
indispensable for her. It is made clear that it is only in compelling circumstances, such right can be
claimed and protected. In the enforcement of fundamental right, the employer cannot raise a plea to
defend themselves by referring to financial implication or organisational interest. Whatever be the
inconvenience that the employer may suffer, that is no excuse against claim of protection of
fundamental rights.

Our culture, tradition and practice venerate motherhood; our Constitution proclaim and protect
status, dignity and self- respect of motherhood; let our deeds, action and decision not be allowed to
become profane on motherhood of a woman."

(emphasis supplied)

45. The issue of maternity benefits for students of Delhi University arose before the Delhi High
Court in Vandana Kandari Vs University of Delhi9. The ordinances of the Delhi University came in
the way of grant of relief to the petitioner who was an expectant mother. After examining the rights
of pregnant female students and the said ordinances the anvil of Articles 41, 42, 43, Article 15(3) of

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the Constitution of India and the judgments rendered in Madhu Kishwar and others Vs State of
Bihar and others10, the Delhi High Court held as under:

"62. In the light of the above discussion, if any female candidate is deprived or
detained in any of the semester just on the ground that she could not attend classes
being in the advanced stage of pregnancy or due to the delivery of the child, 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.
We cannot make them pay the price for the glory that is motherhood."

46. The judgment of the learned Single Judge in Vandana Kandari (supra) was carried in appeal
(Ref: LPA 662/2010, University of Delhi and another Vs. Vandana Kandari and another). The
learned Division Bench of Delhi High Court while not agreeing with the findings of the learned
Single Judge held that the petitioners were entitled to relaxation in view of the concession given by
the University. The concession was commended by the learned Division Bench:

"3. We are of the considered opinion that the maternity leave could not have been put
in a different compartment for the purpose of relaxation of attendence. In view of the
aforesaid, the decision rendered by the learned single Judge to this extent suffers
from an infirmity and is accordingly set aside. Be it noted, a peculiar circumstance
has emerged in this case. Though we have allowed, appeal, we have asked Mr. M.J.S.
Rupal whether the University has any objection to the benefit of relaxation to the two
respondents. Regard being had to the special features of the case, Mr. M.J.S. Rupal
has fairly stated that the University has no objection to give the benefit of relaxation
to the respondent students. We record our appreciation for the statement made by
Mr. M.J.S. Rupal after obtaining instructions from the University. We may also aptly
note that the said concession has been given by the University as the result of the
respondents have already been declared. Needless to say that when a case is decided
and benefit of concession is given, the same cannot be cited as a precedent in future
cases. There shall be no order as to costs."

47. Similarly in A. Arulin Ajitha Rani Vs. The Principal, Film and Television Institute of Tamil Nadu
and others11, the Madras High Court directed the institution to frame a policy for pregnant women
after finding that the maternity support granted to the petitioner to be inadequate:

"27. Therefore, the writ petition is allowed and the impugned order is set aside. The
first respondent is directed to formulate a policy in general, for all educational
institutions and universities in the State, so as to ensure that girl students, whose
attendance falls short of the prescription, on account of marriage and pregnancy, are
granted the benefit of condonation of shortage of attendance, so that the natural

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biological process does not act as a hindrance to the education and empower of
women. There will be no order as to costs."

48. The Madras High Court in Nithya Vs. University of Madras and others12 mandated the grant of
maternity support in view of Article 42 of the Constitution of India by holding thus:

"5. Learned counsel for the first respondent, University of Madras submitted that as
per the attendance regulation applicable to the petitioner even if 50% of attendance is
condoned as the rule stands, she has to appear for the next September or subsequent
University examination by paying the prescribed condonation fee without putting in
further attendance. There is force in the contention of Miss K. Geetha, learned
counsel appearing for the respondent that as the rule stands the University is bound
by the said regulations. However, in the instant case, it is clear that the petitioner
during the last course of her academic year for B.A. Corporate Secretaryship was
married on 18-10-1993 and she was conceived shortly thereafter and as a result she
was suffering from morning sick- ness and other indispositions and, therefore, she
was not in a position to attend the classes regularly. The reasons given by the
petitioner for not attending the classes have to be accepted as they are genuine and
natural consequences of married life. However, there is an impediment as far as
University is concerned as long as Regulation 2(ii) is there. Taking into the peculiar
facts and circumstances of the case, I feel that it is a fit case to give an exemption
from the operation of the said rule as the petitioner has completed 55.75% of
attendance and as such she is entitled to condonations of attendance by paying
necessary condonation fee to the University. In this connection it is observed that as
large number of women students are joining University courses and the type of
situation in which the petitioner was involved viz., she was married, may also occur
in case of any woman students. The directive principles of State policy contain in
parly IV of our Constitution by Art. 41 says that the State shall, within the limits of its
economic capacity, make of active provision for secur ing education. If equal
opportunity is given to women for education, they can stand on equal terms with
men. Article 42 the Directive Principles of State Policy says that the State shall make
provision for securing just and humane conditions of work and for maternity relief.
Maternity relief in case of girl student will include leave. The University of Madras, a
creature of statute can make provisions for granting leave to girl students, if they get
married during the period of study and lose their minimum attendance. It is high
time that the regulations that have been framed by the University are modified taking
into consideration such situations where women student are married during the last
course of their academic career and due to pregnancy they may not be in position to
attend and complete the course."

(emphasis supplied)

49. The Delhi High Court examined service conditions in CRPF, which put pregnant employees at a
disadvantage in Inspector (Mahila) Ravina Vs. Union of India and others13. The Delhi High Court

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looked askance against such discriminatory treatment against women and after viewing the
controversy on the foot of Articles 14, 15 (1), 16 (2) and 21 of the Constitution of India laid down the
following proposition of law:

"12. It would be a travesty of justice if a female public employee were forced to choose
between having a child and her career. This is exactly what the CRPF s position
entails. Pregnancy is a departure from an employee s "normal" condition and to
equate both sets of public employees- i.e. those who do not have to make such choice
and those who do (like the petitioner) and apply the same standards mechanically is
discriminatory. Unlike plain unwillingness- on the part of an officer to undertake the
course, which can possibly entail loss of seniority- the choice exercised by a female
employee to become a parent stands on an entirely different footing. If the latter is
W.P.(C) 4525/2014 Page 6 treated as expressing unwillingness, CRPF would clearly
violate Article 21. As between a male official and female official, there is no
distinction, in regard to promotional avenues; none was asserted. In fact, there is a
common pre-promotional programme which both have to undergo; both belong to a
common cadre. In these circumstances, the denial of seniority benefit to the
petitioner amounts to an infraction of Article 16 (1) and (2) of the Constitution, which
guarantee equality to all in matters of public employment, regardless of religion,
caste, sex, descent, place of birth, residence etc. A seemingly "neutral" reason such as
inability of the employee, or unwillingness, if not probed closely, would act in a
discriminatory manner, directly impacting her service rights. That is exactly what has
happened here: though CRPF asserts that seniority benefit at par with the
petitioner s colleagues and batchmates (who were able to clear course No. 85)
cannot be given to her because she did not attend that course, in truth, her
"unwillingness" stemmed from her inability due to her pregnancy. In this present
situation the course was in Coimbatore. Travelling and living in an alien area without
support was not a feasible proposition for an expecting mother; besides, the CRPF
had determined that her medical category was SHAPE III. Mercifully, the CRPF does
not contend that its regulations imposed any restrictions on a female employee s
pregnancy at the stage of the Petitioner s career. That the petitioner exercised her
right therefore to become a parent should not operate to penalise her, and her
,,choice to do so was irrelevant, in the circumstances of the case; the CRPF should
have taken the reasons for the unwillingness into account given the admitted fact that
she was pregnant.

13. Standing Order dated 19.03.1999, by clause (J), clothes the Director General,
CRPF with discretion - through non-obstante and overriding power. This case was
eminently suitable for the Director General to exercise his powers on a
compassionate basis, enabling the petitioner to catch up on lost opportunity due to
her involuntary condition (on account of her exercise of reproductive rights) and
regain her seniority with her batchmates who cleared the 85th course. The omission
to exercise this power has led to the present dispute. The lack of an express plea of
pregnancy based discrimination does not in any way stop this court from doing

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complete justice, to further the rights of the petitioner under Articles 14, 15 (1), 16 (2)
and 21 of the Constitution of India. (emphasis supplied)

14. For the foregoing reasons, this Court hereby directs the Respondents to restore
seniority of the Petitioner from 10.07.2010, the completion date of SICC SL. No. 83-
as in the case of her other batchmates who completed that course, and consequently
promote as well as assign her consequential seniority. Consequential seniority and all
pay benefits including fixation of pay and arrears of pay shall also be disbursed to the
petitioner within twelve weeks. The writ petition is allowed in the above terms. No
costs."

50. Per contra on behalf of the University, Sri Rohit Pandey, learned counsel assisted by Ms.
Shambhavi Tiwari, learned counsel for the University relied on the judgment of the Madras High
Court rendered in A. Arulin Ajitha Rani (supra). The learned Division Bench in A. Arulin Ajitha Rani
(supra) declined to apply the provisions of Articles 42 and 51 of the Constitution of India and also
the international conventions to which India is a signatory, to grant any maternity benefits to the
petitioner:

"10. Even assuming that an Educational Institution may also come within the
aforesaid provisions, there is no dispute that the State Government has not issued
any notification declaring that the provisions of the Act would be applicable to the
educational institutions. There can not be any dispute regarding the requirement of
grant of maternity benefit to the working women. However, the question is, in the
absence of any specific provision applicable to educational institution, whether such
provision can be extended.

11. We do not think that in the content in which such provisions have been made for
the working women, such provisions can be ipso facto made applicable. Whether
such benefit can be extended or not is essentially a policy decision to be taken by
either the State Government or the Central Government.

14. For the aforesaid reasons, we are unable to persuade ourselves to interfere with
the order of the learned single Judge. The question as to whether similar beneficial
provisions should be made applicable to the educational institutions is essentially a
policy matter left to the wisdom of the legislature and we do not express any opinion
in one way or the other."

51. Similarly, in Ahalya K.A. Vs. Kannur University and others14, the Kerala High Court did not
deviate from the regulations of the University which provided for minimum attendance requirement
even when the absence was on account of pregnancy. The Kerala High Court created a distinction
between women who are pursuing academic courses and working women to deny relief by holding:

"5. The learned Counsel for the petitioner would argue that leave on grounds of
maternity is an accepted practice, even in service and the employer is also obliged to

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pay salary for the period spend on maternity leave. The same welfare measure
extended to women in service, should also be extended to them in studies; is the
argument. This court is not prepared to accept the said contention. The incidence of
service and the requirement in a regular course of study cannot be equated . While in
employment, the grant of maternity leave is a statutory mandate which the employer
definitely has to comply with; even to his or her disadvantage, of not having the
services of such woman employee when payment of salary is made. That is a definite
advantage conferred on the employee who has to remain out of employment only for
reason of her pregnancy. However in studies, if a student keeps away from classes, on
the ground of pregnancy, then disadvantage is to that student. The University
definitely does not suffer any disadvantage but it has to go by its regulations which
have a binding nature on the University and the student. Such regulations are also
made to ensure the quality of education and the degree offered; on completion of
studies; upon which the Society acts. A student cannot be allowed to keep away from
the regular courses in a structured system of education and then be permitted to
appear for the examinations as a equitable measure. "

52. The Kerala High Court declined to depart from the University regulations to ameliorate the
disadvantage imposed by pregnancy in Jasmine V.G. Vs. Kannur University15 by holding :

"6. This Court, with due respect, is unable to accept the finding of the learned Single
Judge that in providing just and humane conditions of work and for maternity relief
and in making effective provisions for securing the right work and to education, a
female student could be given relaxation from attending the requisite classes as
stipulated by the educational agency or the University for participating in the
examination. The requirement, insofar as providing minimum attendance in lecture
classed, is to equip the students to better perform in the profession they wish to
pursue. Mere bookish knowledge is not the criteria of judging a professional, and
pass in examination is not the only standard. The professional courses insist that the
structured as semesters over a period of years. That involves attendance in lecture
classes, participation in seminars, performance in practicals; herein giving lectures
and so on and so forth, which; together with the pass in the final examinations, not
only awards a degree but sends forth a well molded professional into society. This
ensures that the students, after the award of the degree when set out to the
professional world, is equipped to discharge the professional duties with high
standards, commitment and orientation in the chosen vocation.

7. The petitioner herein is a student of B.Ed., a teacher training course, and is being
trained to work as a teacher, whose role in nation building cannot , but be
emphasized. It cannot be said that merely for the reason of her pregnancy a student
could be allowed to sit for the examinations even without satisfying the requisite
attendance, as prescribed by the educational agency. It cannot also be said that the
case of the petitioner is an exceptional one, since, pregnancy cannot be considered to
be a medical condition visited on the petitioner unexpectedly. This Court is of the

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firm view that the petitioner ought to have definitely adjusted her priorities when
continuing a higher education, especially in a course which trains her to be a
professional teacher. Pregnancy was an optional choice and that cannot be a reason
to permit a student to deviate from the requirements of a regular course of study, and
the insistence to adhere to the course regulations cannot be termed to be, a negation
of the preferential values of motherhood. The petitioner has chosen to expand her
family and can only be deemed to have taken a sabbatical form regular studies; which
is definitely permissible and laudable too. But that cannot be turned to her advantage
for wriggling out of the terms and conditions of a regular academic course. The award
of a degree is not a private affair concerning the awardee along; when it also brings
with it the stump of approval of a reputed educational agency, on which the society
acts. Personal preferences and individual predilection should bow down to the larger
public interest and societal obligations. The petitioner definitely will be entitled to
continue the second semester in the next year and appear for the examination after
securing the requisite attendance."

53. The Delhi High Court in Ankita Meena Vs. University of Delhi16, refused to condone the
shortfall in attendance even after acknowledging the inability of the petitioner to attend the regular
classes on account of her pregnancy.

54. The judgement of Ankita Meena (supra) rendered by Delhi High Court was taken in appeal
before the Supreme Court. Various interim orders were passed from time to time in favour of the
petitioner Ankita Meena. In Ankita Meena Vs. University of Delhi17 the Supreme Court ruling in
favour of the petitioner held as follows:

"12. Therefore, the I.A. and the SLP are disposed of directing the University to declare
the 5thSemester supplementary Examination results of the petitioner and issue the
provisional degree along with necessary certificates, if she had passed the
examinations, subject to the petitioner clearing the other formalities. This order is
passed in the peculiar facts and circumstances of the case."

55. University regulations for minimum attendance and medical council rules were strictly
interpreted and rigidly enforced by Punjab and Haryana High Court in Dr. Shelly Jetly Vs. State of
Punjab and others18. In Dr. Sheely Jetly (supra) while denying relief to the petitioner, who could
not fulfill the attendance criteria because of her pregnancy, it was held:

"8. The above recommendations leave no manner of doubt that no exemption is

provided to the candidate during the period of three years either for doing
housemanship or for any other experience or diploma. Necessarily it has to be taken
that the candidate should not have any continuous break from the period of training.
It has not been disputed by the petitioner that the recommendations and directions
of the Medical Council of India are binding on respondent Nos. 2 and 3 and these
cannot by bye-passed by the petitioner. It cannot be overlooked that the entire study
course is traning based. It has to be kept in mind that candidate during the course of

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training has not only to share greater responsibility in the management, but has also
to acquire expertise kinwledge during his clinical performance and, therefore,
necessarily the training period would also include Sundays and public holidays. The
retionable behind such a course of specialization appears to be that utmost benefit
can be derived by the student by following the scheduled course of training. It is for
that reason that it is a residency system course. It cannot be ignored that continuous
break of six months of the training whether on account of maternity leave or for any
other reason like aliment etc. does have a direct impact on the schedule of training
based and the medical Council of India has chosen to limit the absence from the
training up to 20%, it does not fall within the domain of any other authority to
bye-pass that requirement. Once this limit is allowed to be tinkered with for one
reason for the other, it would lead to defeat the very purpose for which training
course has been envisaged. The direct consequence would be that it would ultimately
affect the prescribed standards of the Post- Graduate Decree Course. The
recommendations of the Medical Council of India note above does not give any
option to the university to deviate from them."

56. With utmost respect to the erudite holdings of A. Arulin Ajitha Rani (supra), Kerala High Court
in Ahalya K.A. (supra) and Jasmine V.G. (supra), Delhi High Court in Ankita Meena (supra), Punjab
& Haryana High Court in Dr. Shelly Jetley (supra) it has to be observed that the judgements of the
Supreme Court and the High Courts in point, applicable constitutional provisions as well as the
international instruments to which India is signatory were not referred to the Hon'ble Courts.

57. In such wake, the aforesaid judgements relied upon by the respondent University do not
constitute binding precedents applicable to the facts of this case.

G. Evolution of Fundamental Rights by courts, Legislative Lag & Executive Inertia:

58. The fundamental rights of citizens are stated in Part III of the Constitution of India. In many
cases, text of the right does not contain an exhaustive description of the scope of the right. Rights
have to be interpreted from the text of the Constitution. The process of interpretation of the text,
results in the evolution of rights. The Constitution is the textual origin of fundamental rights.
Constitutional law defines the substance of fundamental rights.

59. The fast pace of life in modern times often outstrips the capacity of the legislature to cope with
the consequences of social change. There is a limit to human foresight, but the possibilities of life are
limitless. The limits of legislation are the constraints of human foresight. The legislative process is
complex and even time taking. Human affairs do not wait on the legislative process. These facts
frequently create a legislative lag. It is almost inevitable in the nature of things.

60. The first intersection of life with law, at times happens in courts, even before the legislatures
grapple with the problems. The courts are often seized of various emerging issues in social and
individual lives, before the legislatures are cognizant of them.

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61. A legislative hiatus or executive lethargy cannot cause a constitutional stasis. The enforcement of
fundamental rights cannot be forestalled by a legislative lag or executive inertia or a regulatory void.
Constitutional guarantees and Fundamental Rights have to be enforced on demand. Constitutional
overhang is perpetual. Law is always in motion and never at a standstill. The Constitution of India is
a forever living organism. Constitutional law can never be stone deaf to calls of violations of
fundamental rights.

62. The text of the Constitution contains a conceptual philosophy of fundamental rights, and is not
an exhaustive compendium of all fundamental rights. The text of the Constitution is constant,
fundamental rights are always evolving. This is the essence of constitutional law jurisprudence.

63. There is a method in the evolution of constitutional law jurisprudence. Evolution of

constitutional law rights are guided and controlled by the text of the constitution, long settled
judicial principles of interpretation of the constitution, and judicial precedents in point. The march
of law is also assisted by consensus of values in the comity of civilized nations. These universal
values are often manifested in international instruments. Another source of such values is
comparative international jurisprudence. The felt needs of the times are also factored in by the
courts. Development of constitutional law and evolution of fundamental rights happens on these
sure foundations. Fundamental rights are thus distilled by the constitutional courts in discharge of
their constitutional obligations. This is not judicial activism by courts. It is judging.

64. The Supreme Court in Vishaka Vs. State of Rajasthan19, issued various guidelines for the safety
of women at working places. The guidelines held the field, till the Parliament enacted a legislation.
Judicial directions in that case preceded the legislative enactment. Infact the legislature was alerted,
to the need of a legislation to cover the field, by the judgment of the constitutional court.

65. This narrative will profit from the observations made in Rattan Chand Hira Chand v. Askar
Nawaz Jung20:

"The legislature often fails to keep pace with the changing needs and values nor is it
realistic to expect that it will have provided for all contingencies and eventualities. It
is, therefore, not only necessary but obligatory on the courts to step in to fill the
lacuna. When courts perform this function undoubtedly they legislate judicially. But
that is a kind of legislation which stands implicitly delegated to them to further the
object of the legislation and to promote the goals of the society. Or to put it
negatively, to prevent the frustration of the legislation or perversion of the goals and
values of the society. So long as the courts keep themselves tethered to the ethos of
the society and do not travel off its course, so long as they attempt to furnish the felt
necessities of the time and do not refurbish them, their role in this respect has to be
welcomed.

(emphasis supplied) All courts have at one time or the other felt the need to bridge
the gap between what is and what is intended to be. The courts cannot in such
circumstances shirk from their duty and refuse to fill the gap. In performing this duty

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they do not foist upon the society their value judgments. They respect and accept the
prevailing values, and do what is expected of them. The courts will, on the other
hand, fail in their duty if they do not rise to the occasion but approve helplessly of an
interpretation of a statute or a document or of an action of an individual which is
certain to subvert the societal goals and endanger the public good."

66. K. S. Puttaswamy (supra) unequivocally set forth that determining different facets of dignified
existence which fall within Article 21 of the Constitution of India, is a function of judicial review:

"127. The submission that recognising the right to privacy is an exercise which would
require a constitutional amendment and cannot be a matter of judicial interpretation
is not an acceptable doctrinal position. The argument assumes that the right to
privacy is independent of the liberties guaranteed by Part III of the Constitution.
There lies the error. The right to privacy is an element of human dignity. The sanctity
of privacy lies in its functional relationship with dignity. Privacy ensures that a
human being can lead a life of dignity by securing the inner recesses of the human
personality from unwanted intrusion. Privacy recognises the autonomy of the
individual and the right of every person to make essential choices which affect the
course of life. In doing so privacy recognises that living a life of dignity is essential for
a human being to fulfill the liberties and freedoms which are the cornerstone of the
Constitution. To recognise the value of privacy as a constitutional entitlement and
interest is not to fashion a new fundamental right by a process of amendment
through judicial fiat. Neither are the Judges nor is the process of judicial review
entrusted with the constitutional responsibility to amend the Constitution. But
judicial review certainly has the task before it of determining the nature and extent of
the freedoms available to each person under the fabric of those constitutional
guarantees which are protected. Courts have traditionally discharged that function
and in the context of Article 21, as we have already noted, a panoply of protections
governing different facets of a dignified existence has been held to fall within the
protection of Article 21." (emphasis supplied)

67. Motherhood is the most sublime expression of Nature's longing for life. Dignity of motherhood is
the highest manifestation of refinement in the human race. To recognize maternal dignity as a
constitutional entitlement is not to create a new fundamental right through judicial fiat.

H. Education & Universities Role and obligation of universities "Universities are made by love, love
of beauty and learning." ~Annie Besant

68. Universities are the custodians of old values, even as they ceaselessly push the boundaries of
modern knowledge.

69. In universities students of diverse backgrounds and different beliefs, congregate in a common
pursuit of knowledge. Through knowledge they will learn, that humanity unites more than diversity
differentiates. With learning they will understand that diversity enriches human life, and does not

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divide humankind. University experience will help them cultivate constitutional values and
transcend parochial attitudes.

70. Universities are not teaching shops, nor are they mere examining bodies. Universities nurture
intellect and develop character of young citizens in a wholesome manner. Students gain knowledge
and imbibe values in universities. These dual pursuits constitute the founding purpose of a
university, in fact its raison detre.

71. A unifocal approach promoting scholastic achievements, to the exclusion of character building
will degrade the founding principles of a university.

72. Ideals professed by the University today will be the values practised by the nation tomorrow.
Lack of empathy of the University towards pregnant women will create apathy towards maternity
rights among the students. The University has to show fidelity to the rule of law by creating an
enabling environment to realize fundamental rights, foster fundamental duties and promote
constitutional values.

I. Conclusions & Directions

73. The rights of the petitioner to reproductive choices, marriage, procreation and motherhood are
entrenched as fundamental rights by the law laid down by constitutional courts.

74. The need to ameliorate the constraints imposed by pregnancy and its aftermath and to dignify
motherhood by providing institutional support systems for expectant mothers and new mothers is
an imperative command of law. The respondent University has to implement the fundamental rights
of the petitioner vested by the aforesaid pronouncements of law made by constitutional courts.

75. The petitioner in this case could not clear her exams in the stipulated attempts and time period
due to pre natal and post natal conditions. The petitioner could not compete equally with other
students due to constraints of pregnancy and new motherhood. Her disadvantage was not
compensated by the respondent University.

76. Wide amplitude of powers vested by virtue of Section 29 of the Uttar Pradesh Technical
University Act, 2000 enjoin upon the University to create necessary Regulations which will exalt
constitutional values and bring fundamental rights of the students to fruition. Regulation 4.12
contemplates making special arrangements for female students.

77. The respondent University has neglected to frame Regulations or create appropriate legal
instruments to provide for maternity benefits to expectant mothers and new mothers. The failure of
the University to perform its statutory functions has left the students bereft of maternity benefits.
This inertia of the University betrays its insensitivity to the plight of pregnant students, undermines
the rule of law and subverts the ideal of holistic education. The University cannot justify violation of
fundamental rights of the petitioner on the foot of its own omissions.

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78. Gurudev Tagore had alerted the nation to the consequences of absence of empathy in societal
values: "Stupendous load of callousness that accumulates till the moral foundations of our society
begins to show dangerous cracks and civilizations are undermined21."

79. Various regulatory bodies including All India Council for Technical Education (AICTE) restrict
the grant of maternity benefits to post graduate fellowship students while overlooking
undergraduate students. Such discriminatory treatment is violative of Articles 14 and 15(3) of the
Constitution of India.

80. However, it is noteworthy that in the counter affidavit filed on behalf of the All Indian Council
for Technical Education (AICTE) does not resist grant of maternity benefits to the petitioner.
Sequitur of the stand of the AICTE before this Court is that the University is not constrained by any
regulatory standards in creating provisions for grant of maternity benefits for undergraduate
students. No other co-respondents, namely Union of India, State of U.P. or the UGC have contested
the entitlement claimed by the petitioner.

81. The circular/order issued by the University Grants Commission, New Delhi on 14.12.2021,
produced by Shri Paras Nath Rai, learned Central Government Standing Counsel is reproduced
hereinunder:

"D.O.No. 21-116/2021 (CPP-II) 14th December, 2021

Subject: Maternity leave to women students.

Respected Madam/Sir,

The UGC has made a provision in the UGC (Minimum Standards and Procedure for Award of
M.Phil./Ph.D. Degrees) Regulations, 2016 that:

"that women candidate may be provided Maternity Leave/Child Care Leave once in
the entire duration of M.Phil./Ph.D. for up to 240 days."

In addition to above, all Higher Education Institutions(HEIs) are requested to frame appropriate
rules/norms with regard to granting Maternity Leave to the women students enrolled in their
respective institution/affiliated Colleges and also provide all relaxations/exemptions relating to
attendance, extension in date for submitting examination forms or any other facility deemed
necessary for women students pursuing Under Graduate and Post Graduate programmes.

With kind regards.

Yours sincerely (Rajesh Jain) The Vice Chancellors of all Universities"

82. In wake of the aforesaid circular issued by the University Grants Commission, New Delhi, and
the stand of the Union of India, there is no legal impediment before the respondent University to

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frame the necessary Regulations for grant of maternity benefits.

83. The University by framing the aforesaid Regulation will be true to the legacy of Dr. A. P. J. Abdul
Kalam, former President of India, in whose name the University is founded. The University will do
itself credit by realizing the vision of the scholar statesman. The University cannot rest content in
the reflected glory of his undying name.

84. This Court wishes to record its appreciation on the sensitivity in the stand and promptness of
response of the Union of India and the University Grants Commissions, New Delhi in the matter.

85. The Court also commends Shri Paras Nath Rai, learned Central Government Standing Counsel
for the diligence with which he has discharged his duties as counsel for the Union of India and an
officer of this Court.

86. By failing to frame Regulations or appropriate legal instruments for grant of maternity benefits
and by declining to grant such benefits to the petitioner, the University has violated the fundamental
rights of the petitioner as guaranteed under Articles 14, 15(3) and 21 of the Constitution of India and
as expounded in the law laid down by Constitutional Courts.

87. The questions framed for consideration are answered as under:

I. The petitioner is entitled to an additional chance to appear in the examinations

which she could not clear in the admissible time frame due to her pregnancy and post
natal recovery period.

II. The petitioner cannot be denied maternity benefits on the foot that the University
Ordinances or University Regulations do not provide such relaxation. The University
is under an obligation of law to frame the requisite Regulations/appropriate legal
instruments for grant of maternity benefits to students which embrace the pregnancy
period and post natal recovery time. The University is also liable to consider the grant
of maternity benefits to the petitioner in light of the said Regulations.

III. The relief to which the petitioner is entitled to set out below.

88. A writ in the nature of mandamus is issued to the respondent-University to execute the
following directions:

I. The University shall create Regulations/Ordinances/appropriate legal instruments

for grant of pre-natal and post-natal support and other maternity benefits to
expectant mothers and new mothers who are pursuing various courses in the
University. The maternity benefits shall also include additional chances to clear the
exams in an enlarged time frame.

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II. The petitioner shall make an representation with supporting documents

(including medical reports/certificates) to appear in the aforesaid examinations in
the subjects of (a) Signals and System--3rd semester--B.Tech. (Electronics and
Communication) (b) Engineering Mathematics-II, 2nd Semester--B.Tech.
(Electronics and Communication), which will be conducted by the University. The
examinations schedule shall be decided by the University.

III. The petitioner shall be permitted by the University to appear in the aforesaid
examinations.

IV. The above directions shall be complied with within a period of four months from
the date of receipt of a certified copy of this order.

89. The writ petition is allowed to the extent indicated above.

Order Date: 16-12-2021 Kumar Dhananjai

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