Paper Read in a Conference of the Law Officers of Kerala

Held under the Presidentship of the Advocate General on 22-2-1969 at Ernakulam By
Sri. P. Balagangadara Menon, Addl. Govt. Pleader, Kerala High Court.

The jurisdiction vested in the High Courts under Article 225 of the Con­stitution of India is frequently invoked by employers engaged in industry and agriculture for the grant of relief by way of Writ of Mandamus or a direction for protection of their life and property. According to the procedure now in force in our High Court, the petitioner can move an application under Article 226 of the Constitution and pray for an interim direction and the Court, on being satisfied that there is a prima facie case, admits the Writ Petition and may make an interim order. At the stage when the case comes uo for admission the State Government or the officers are not represented in the Court unless the State Government or the officers give instructions to the law Officers of the State to enter appearance and oppose the grant of interim direction. Once an-interim direction is made by the Court, it is often difficult to get the same vacated unless exceptionally strong grounds are made for the same. In order, therefore, to quickly and effectively deal with these cases the rules regulating the proceedings under Articles 226 and 227 of the Constitution may be suitably amended so as to make it obligatory on-the part of the petitioner to give advance notice of any application to be moved by him for the grant of interim order. If such an amend­ment is made to the rules it will not only facilitate quick disposal of cases by the Court but will also help the authorities in taking expeditious and effective action.

An analysis of the cases decided by the Court for one year reveals that the following are the circumstances in which the petitioners approach the Court with a prayer for” police protection. Employers pray for the issue of a Writ for directing the State and the Police Officers to afford protection for their factories and industrial undertakings. Big as well as small agriculturists also pray for direction for giving adequate protection for their property and for carrying on agricultural operations and also for the issue of a direction for protection of their personal liberty. In some industrial establishments, the workers may be on strike and then petitioners pray that they may be given adequate police help to carry on the work with loyal workers and that they may be given help of the police to bring raw materials inside and take finished goods outside the factory.

The Constitution of our country guarantees freedom to acquire and own property and the freedom to assemble peaceably without arms. When an indus­trial dispute arises between the employers and the workmen there is likely to be conflict between the interests of the employers and the workmen. The workmen in exercise of their right of collective bargaining may carry on demonstrations, launch strike: and indulge in other activities with a view to compel the employers to agree to their claims. This frequently gives rise to problems of law and order but in order to appreciate and understand the points in controversy a clear dis­tinction has to be borne in mind between the rights of the workmen, the rights of the employee’“? and the duty of the State. What are the rights of the employers? The employers have the right to carry on business peacefully. They have the right to acquire and own property. On the other hand, the workmen have the right to work and have also the right not to work. They have the right to bar­gain collectively against the employers and for wresting from them better terms and conditions of service and so long as the employers and the workmen exercise their rights in a peaceful and orderly manner no question of any interference by the police will arise. But the moment either employer or the workmen violate the law of the land it is undoubtedly the duty of the police to interfere and dis­charge the duties vested in them by law. But, the duty of maintaining law and order, rests with the executive Government and Courts normally will not and can­not interfere with that function. The Constitution of our country has in its preamble, resolved to secure to all its citizens social and economic justice. In this connection, the following observations of an eminent Chief Justice of India about the imperative and urgent necessity of securing social justice to economi­cally weaker sections of our people may with advantage be referred to. Chief Justice Gajendragadkar in his Lajpatrai Memorial Lectures stated thus:

“Let us never forget that to the large class of citizens who suffer from stark poverty and its inevitable accompaniments, notions of individual freedom and liberty are apt to sound as empty words which obtain popular currency only in the drawing-rooms of the rich and well-to-do classes of citizens; for it is plain that hunger makes men impatient and angry, and impatience and anger lead to blindness. In their struggle to face the urgent and pitiless problem of poverty, citizens may not be able to appreciate the theoretical signifi­cance and grandeur of the concept of individual freedom and liberty. The concept of social justice is thus a revolutionary concept which gives meaning and significance to the democratic way of life and makes the rule of law dynamic. It is this concept of social justice which creates in the minds of the masses of this country a sense of participation in the glory of India’s political freedom. When Indian democracy seeks to meet the challenge of socio-economic inequality by its legislative process and with the assistance of the rule of law, it virtually seeks to achieve economic justice without any violent conflicts”.

Therefore it is necessary and inevitable that a modern democratic welfare State has to approach the problem of the rights of employers and workmen in an entirely different way from that of a State which concerned itself with purely maintenance of law and order. Before our country became independent when workers were carrying on agitations for advancement of the rights the police consciously or unconsciously was acting in such a manner that the employers were in an advantageous position and in many cases the agitations of workmen were suppressed with the help of the police. But a modern democratic welfare State cannot afford to adopt this course and necessarily has to direct its police to remain neutral in conflicts between capital and labour. I think that the policy of the State in this matter is not only legal and fair but is consistent with the principles of justice, fair-play and good government. In this connection, it will be interesting to recall the declaration of the police policy by the first Government of Kerala. The Chief Minister at a Press Conference at Trivandrum on 23rd July 1957 made the following observations on the role of the police in maintenance of law and order:

“It has been the practice of previous Governments that, at the slightest sign of workers and peasants, unrest, leading to demonstrations, strikes, hartals or satyagraha, the police was rushed to help the employers, landlords etc., to suppress the movements, pro­hibitory orders were issued and security proceedings launched and lathi charges and firings ordered, and such use of police force had come to be considered as part of the rule of law. The Government, therefore, repudiate the charge made against them that their policy of not giving capitalists and landlords the assistance and protection, which they have so far been getting in the matter of suppressing the working class and peasants’ struggles, is a violation of the Rule of Law. They, on the other hand, hold the view that such use of the police in favour of the owning classes is a violation of the fundamental rights of the toiling classes, the right of collective bargaining accompanied by the right to resort to strikes or other forms of peaceful direct action. Resort to such repressive measures as Ss.107, 144 etc., will not be made in order to suppress a movement of any section of the people; the right of organisation, of collective bargaining and of direct action will be guaranteed to all sections of the people. But no direct action will be allowed to go beyond the limits of peaceful action laid down above. The person and property of every individual and family will be; protected.”

This naturally raises the question as to what are the legitimate rights of the workers.

In a recent decision the High Court of Calcutta has clarified the position and has observed that there is no immunity for the members of a Trade Union for being dealt with for violation of law except that they will not be liable for criminal conspiracy if they collect together peacefully for the purpose of bargai­ning for their rights. Chief Justice Sinha has made the following pertinent observations:-

“The net result of the decision set out above is that Ss.17 and 18 of the Indian Trade Unions Act grant certain exemption to members of a Trade Union, but there is no exemption against either an agreement to commit an offence or intimidation, molestation or violence where they amount to an offence. Members of a Trade Union may resort to a peaceful strike that is to save cessation of work with the common object of enforcing their claims. Such strikes must be peaceful and not violent and there is no exemption where an offence is committed. Therefore, a concerted movement by workman by gathering together either outside the industrial establishment or inside within the working hours is permissible, when it is peaceful and does not violate the provisions of law. But when such a gathering is unlawful or commits an offence then the exemption is lost. Thus, where it resorts to un­lawful confinement of persons, criminal trespass, or where it becomes violent and indulges in criminal force or criminal assault or mischief to persons or property or molestation or inti­midation, the exemption can no longer be claimed.”

The legal position seems to be the same in England and while the workers have the right to picket in front of an employer’s business in furtherance of a trade dispute law does not permit any picketing which involves any violent activity. The question has directly come up for consideration and Courts in England have held that while the workers have a right to picket in front of factory and business premises it is the duty of the police to take steps for pre­vention of breach of peace.

In a recent case Lord Parker, Chief Justice of England has observed thus:-

“The Court has been referred to a great number of cases both Irish and English dealing with the position when a Police Constable can be said to contemplate a breach of the peace and to take action to preserve it, but I find it is unnecessary to refer to those cases. It seems to me that the law is reasonably plain. First, the mere statement by a constable that he did anticipate that there might be a breach of the peace is clearly not enough. There must exist proved facts from which a constable could reasonably have anti­cipated such a breach. Secondly, it is not enough that his contemplation is that there is a remote possibility but there must be a real possibility of a breach “of the peace”.

The law in the United States of America is also the same. The Supreme Court of United States in the case of National Labour Relations Board v. Fansteel Metal Corporation has held that while workmen have a right to picket in furtherance of a trade dispute they are not immune from being dealt with in accordance with law if they commit offences punishable under criminal law of the land. Chief Justice Hughes speaking on behalf of the Court has stated as follows:-

“For the unfair labour practices of respondent, the Act provided a remedy. Inter­ference in the summer and fall of 1936 with the right of self-organisation could at once have been the subject of complaint to the Board. The same remedy was available to the employees when collective bargaining was refused on February 17, 1927. But reprehensible as was that conduct of the respondent, there is no ground for saying that it made respond­ent, an outlaw or deprived it of its legal rights to the possession and protection of its property. The employees had the right to strike bat they had no licence to commit acts of violence or to seize their employer’s plant. We may put on one side the contested questions as to the circumstances and extant of injury to the plant and its contents in the efforts of the men to resist eviction. The seizure and holding of the buildings was itself a wrong, apart from any acts of sabotage But in its legal aspect the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of an employing company, or the seizure and conversion of its goods, or the despoiling of its Property or other unlawful acts in order to force compliance with demands. To justify such conduct because of the existence of a labour dispute or of an unfair labour practice would be to put a premium on resort-to force instead of legal remedies and to subvert the principles of law and order which lie at the foundations of society”.

Norman Arthur Citrine, who is an acknowledged authority of labour law and labour relations in England; has observed that when picketing ceases to be peaceful and becomes an obstruction or nuisance, the picketeers are liable to be dealt with in accordance with the provisions of criminal law.

‘If the manner of the picketing ceases to be peaceful or becomes an obstruction or a nuisance, or endangers the public peace, the picketing will cease to be lawful. Thus, if a picket commits a private nuisance, as by violently and continually hanging on the door, shouting, obstructing ingress or egress, or otherwise seriously interfering with the enjoyment of the house or if he commits a public nuisance such as behaving in a manner calculated to cause a breach of the peace, or unreasonably obstructing the highway, his common law right to picket and his right to “attend” under the Section will cease and neither will protect him from civil or criminal liability for any of these acts, or for any “watching or besetting”, with a view to compel, which he may also have committed. So also if the picketing is carried out in such numbers or otherwise in such a manner as to be likely to intimidate those subject to it, or to obstruct or molest them against their will, it will be unlawful. Any show or threat of violence, or any other unlawful threat likely to create fear in the mind of a reasonable man will render picketing unlawful, and may make it criminal. Pickets are therefore not entitled, in order to compel people to listen to them, to obstruct them by deliberately standing in their way or catching hold of their arms. Nor are they entitled to obstruct the passage of vehicles by lying down in the highway in front of them. Neither may they continue to pester, i. e. molest those persons who do not wish to listen and who have requested them to desist.”

The maintenance of law and order is an executive function of the State and Courts normally do not and will not interfere in the exercise of such fun­ction. Even if the Court interferes it is doubtful whether the Court has power to say in which way the administration of law and order must be carried out. That essentially is a matter which the executive Government has to decide.

In cases in which police protection is sought for the High Court normally will not interfere if the authorities have exercised their jurisdiction vested in them and will not and cannot direct the exercise of function in any particular manner. But, if there is any violation of a statutory duty vested in the autho­rities and the High Court is satisfied that there has been a deliberate refusal to discharge such duty the Court may in appropriate cases issue directions to them for discharging duties imposed by law. What then is the extent of jurisdiction of the Courts interfering with the duties of police in maintenance of law and order? The answer to this question can be found in a decision of the Privy Council. Lord Porter who delivered the judgment on behalf of the Board has stated thus:-

“Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he maybe duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S.491, Criminal Procedure Code, to give directions in the nature of habeas corpus”.

In conclusion I desire to emphasise that law like all other human instit­utions can never be static. As society advances law must also adapt itself to meet new and challenging situations. The traditional concept of rule of law requires a change in the light of social and technological developments in a modern democratic society. We must adapt a progressive and dynamic concept of the rule of law.

CORONA AND THE LAW

(M. Marcus, Advocate, Ernakulam)

With the spate of Industrial Development in our Country, the use of electric energy has been widespread. The drawing of High tension overhead lines under the provisions of Indian Electricity Act has made the vast area, of land traversed by the electric lines (strings) suspended from electrical towers. The very sky appears to be palisaded from the earth when we look at the milky way. It is not doubted for a moment as to the quantum of ultimate benefit from this net work of electrical lines as far the Industrial progress of the country is concerned.

It is a truth that private immovable property has been affected by the drawing of these High tension lines and the courts of the land have been engaged in awarding compensation for the trees cut and ocher damage done to facilitate the stringing of these lines. We should not lose sight of the fact that the Lawof Torts has “always found the industrial expansion ‘:a fertile ground” of Actions.

The learned reader must be familiar with a luminous envelope and a hizzing noise around these High tension lines if he has chanced to note the same during his solitary ramblings across or near a private property which is bur­dened by these suspended High tension lines. This luminous envelope and noise referred to notable around the lines is designated CORONA DISCHARGE in Electrical Terminology.

The natural consequence of Corona Discharge has been subject of study by Experts in America specialising in the field of electrical energy.

“Electrical Transmission and Distribution Reference Book” 1950 Edition Chapter III published by Westing House Electrical Corporation, Pensilvania, U. S. A. at page 56 to 60 dealing with “Corona Release” mentions that the Corona Release takes place due to the breaking down of the air surrounding the electrical conductor when the electrical energy exceeds a critical limit in the conductor. We should know that air by itself is not a conductor of electricity; so unless it is made conductor it remains innocuous. Now when Corona Release takes place the nature of the air surrounding the conductor changes and air assumes the character of a conductor of Electric Energy. This transformation of simple and harmless air into a dangerous substance is referred to in “The Prin­ciples of Electric Power Transmission” by Waddicor (Chapman & Hall Ltd., 4th Edition, London). This feature occurs due to the electrostatic strain. This is a potential danger. This release of Corona has been traced to produce Radio interference and scholars in America have already wrote about it as evidenced by “Radio Interference Suppression in Canada” by Merriman (A.I.E. Transaction papers No. 47-140 U. S. A.) The same matter is dealt with in.

“Effect of Radio Frequency of a Power system in Radio receiving system”, by Aggers Pakala & Stickel-A. I. E. Transaction papers Vol. 62 of 1934, pages 169 to 172 . From this we can draw the idea that the Corona is capable of causing damage at least by way of radio interference and it is not improbable that it might affect other costly articles like television set, air conditioner etc.

From what has been mentioned above it is clear that the trouble lies in allowing the escape of electrical energy into the air which makes a dangerous transformation of the air as mentioned.

We have to examine the impact of corona on the Law of torts. It is admitted rule that Statutory Authority is statutory immunity but there is an important qualification for it and that is there should not be any negligence:

Negligence has been defined as “failure to use the requisite amount of care required by Law where a duty to use care exists” Riddle v. Ried 1943 A.C. 1-31. This raises the question of reasonable forseability of injury. Charlsworth “On Negligence” 3rd Edition, Page 13 observes “what may be reasonably foreseen in a relevant circumstance is a question of Law though it is perilously near to a question of fact”. In Donoughue v. Steenson MacMillian J. speaking about the degree of care required observes that it depends upon the magnitude of the risk and in the handling of dangerous things “the Law exacts a degree of dili­gence so stringent as to amount practically to a guarantee of safety”.

The fact is that the High tension overhead lines drawn by the Electricity Board is not at all insulated. This absence of insulation is a serious situation since damage could ensue and it can be foreseen. It would be relevant to refer to Page 323 Charlsworth “on Negligence” where the author observes “wire carrying electric current should be kept properly insulated and neglect of this duty causing damage is actionable,”

Commenting on the rule in Rylands v. Fletcher on page 781 of his work “cases on the Law of Torts” Lord Wright visualises the possibility that to make a defendant liable, it-may not be necessary that the dangerous substance should be collected strictly speaking on the land of the defendant. But it is sufficient if the defendant collected the dangerous substance in containers belonging to him though such container be situated in another’s property i.e. the defendant’s gas pipes laid in the property of the plaintiff. The case of “Charring cross” is on the point. The only point is that the pipe or main whatever it may be which contained the dangerous substance should have been maintained by the defend­ant and it is not necessary that the escape should have taken place in the defend­ant’s premises. This aspect of the matter was subject of judicial comment in Ekstrom v. Deagon and Montgomery 1946 1 D. L. R. 208. Parke J. holding defendant liable said: “if a person brings on his own lands a dangerous sub­stance which escapes and injury results to another, for which he does become liable, how much more would a person who takes a dangerous article on another’s property and causes damage to the latter be liable? Page 785, Cases on Law of Torts by Wright, 3rd Edition.

What is attempted to point out is that at present the Courts are engaged in giving compensation for the loss or injury said to have occurred to immova­ble property pursuant to the drawing of overhead High tension lines and judicial opinion has also been extended, to the determination of the quantum of damages that could be awarded in relation to land that might have been affected conse­quent to such “stringing” of wires provided, a fall in the price of land so affected could be proved.

I apprehend that the day is not far to see that the Corona Danger may infest the costly electrical articles kept in houses over which High tension lines might be drawn. This would materially diminish the comfort and solace of life which the Law of Torts jealously guards. Unless a thorough and good insulation is provided for these lines they will prove to be injury releasing machines and for which those who own and possess it would be liable in damages. In a free society right to property movable or immovable is not a matter to be trifled with.

The March of Law

 (T. G. John, Advocate, Trichur)

England, the land of Edward Coke, has again stolen a march in the legal arena, bypassing the Abortion Act in April 1968.

The Act is of far reaching importance and consequence. Under it, it is no longer an offence for a medical practitioner to terminate a pregnancy, provided two registered practitioners sincerely believe that the pregnancy might endanger the mother’s life or health or that of any existing children of the family. Abortion is further permitted if the child to be born is expected to be handi­capped by physical or mental abnormalities. The Act says that in determining whether a continued pregnancy would involve risk to health, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment. Operations are to be performed in a National Health Hospital or a place specifically approved by the Ministry of Health where Chief Medical Officer must be notified of all abortions. Finally the Act has a conscience clause enabling doctors to contract out of undertaking abortions.

It is very interesting to note the various phases through which this im­portant piece of social legislation had to pass through before it became law. The whole thing was sponsored by the Abortion Law Reform Association headed by Mrs.Madeline Simms. Progress was very slow till the 1960’s when under the impact of the Thalidomide tragedy support for the Association grew. When the labour victory of 1964 swept a new generation of M. Ps. into the House, the association was assured of a more receptive hearing in high places.

Like all pressure groups, Abortion Law Reform Association kept a watchful eye on the Parliamentary ballot which entitled winning MPs to in­troduce private member’s’ bills. It soon fastened upon David Steel, a young Liberal M. P. to introduce the Abortion Bill. There was a wave of fierce oppo­sition. Roman Catholics compaigned against the Bill; the British Medical Association opposed it. Birmingham Gynaecologists got together to mount a concerted attack on its provisions. Both in the Commons and the Lords, a number of wrecking amendments were introduced but in last October it was approved by both the Houses.

Of the sixty five private clinics which have applied for licence under the Act, six are reported to have been turned down. Some Doctors are reluctant to hand over the private records of abortions to the health authorities as the Act demands and are protesting to the Minister of Health. The number of Doctors who may contract out under the conscience clause may be much bigger than anticipated.

Tailpiece; Mrs, F. Silvester, a native of Herford received a ticket for parking on a single yellow fine, on April 11. She immediately despatched a cheque for §2 to the City Justices with a little rhyme which went like this:-

“No parking crime was my intent,

Towards one shop my steps were bent;

I humbly beg your Lordships pardon,

For penance I will weed my garden”.

The compliments slip from the clerk to the Justice which accompanied the receipt a couple of days later bore this anonymous reply.

“Receipt herewith returned intact,

Parking in Herford is in fact,

A problem we should treat with care,

For fines are imposed on those who dare!”.

Fiat Justicia Ruat Caelum

(By Parvathi Sanjay, Advocate,High Court of Kerala)

• A bright sunny morning in the small village town, Badagara of North Malabar in the year 1959 – the venue is the main road and the time is 10.30 am. The Munsiff, Badagara¹  is on his way to the court (colloquially referred to as the ‘kachery’). He has the Daffaedar escorting him holding an umbrella for him and the peon in tow holding a metal box containing the files of the day. As the Munsiff walks from his residence to the court (those days judicial officers did not have official cars allotted and the few who had own vehicles hardly used to drive them if they resided close to court), the local people including the vendors and their customers on either side of the roads stood up in unison with folded hands as the Munsiff passed.  People on the road, irrespective of their caste, sex or religion gave way to the officer  removing their turbans or unfolding their raised dhotis as a mark of respect. Such was the awe and respect for the judiciary!  A request – instead of viewing the above as a reflection of the then prevalent feudalistic attitude, kindly realise that  this was the kind of respect and awe which the judiciary commanded from the  masses irrespective of the individual who held/presided over the post.  ‘The Munsiff’ was their God-sent, dispenser of Justice.- The above scene came to my mind after a long thought sparked as I alighted  from an online taxi at my office after court when the driver, seeing that I was a lawyer due to my attire, anxiously asked “Madam, what is happening in the courts and to our legal system now a days?”. His query in the vernacular, as I collected the balance money, forced a smile on my face and said - “Nothing...All is well”. It took me back to the yesteryears when I grew up in an environment and a society that held judiciary in such high esteem and made me realise that the common man still has the awe for the legal system but is perturbed and disturbed by the happenings around.

 •Dispensing justice is a divine duty. To be considered to be fit and eligible to do this duty is perhaps a privilege that only a few among us can claim. Once elevated to the post of a judicial officer, be it in the subordinate judiciary or the higher judiciary, the officer has to train his mind and soul along with his legal acumen to become a complete judge. Honesty, sincerity, commitment and spiritual stamina (not religious – being spiritual is of a different order on a higher plane since the power can either be a grace from the Providence or an insight in one’s conscience according to one’s beliefs and upbringing) will essentially guide a good judge throughout his career.  A good judge apparently gets vibes both positive and negative while hearing cases which helps him decide fairly. That is the result of a blessed inner power that makes this job unique, pure and divine.

•This being the age old concept of judges and judiciary, we are now in an era where we as a fraternity (the Bar and the Bench) are questioned by the public about our  integrity, credibility, veracity and reliability. India being a democratic country with a Constitution as
its guide, could always claim an independent judiciary to its credit. Rule of Law is our hallmark. The method and manner in which judicial officers are selected and appointed kept changing over a period according to the necessities, pulse and politics of the nation and the society. Any system has its merits and demerits. Every system may initially function well but can face wear and tear over the years. That again is a law of nature and there is nothing unusual about it. It is for the fraternity to which we belong to, to address the issues with grace and utmost sobriety so that our problems and differences of opinion are  ironed out, handled and repaired by the experts and the experienced among ourselves in the most subtle manner. Let positive criticism act as a catalyst to have an introspection of the working of the system of which we are all a part and parcel. This will help us to take corrective measures and the cleansing process will be smooth and effective. We cannot afford to become a laughing stock.

• Judiciary has a commendable heritage and tradition and we should be proud that we all form part of this noble profession. For the common man, judiciary is still their last hope and resort and they rely on the legal system for a balanced and impartial redressal of their legal grievances. This fact should make us all responsible to work and strive with dignity for the realisation of this philosophical motto, ‘Let justice be done though the heavens fall’ which denotes that justice should be carried out regardless of the situation or consequences. Friends, let us abide by the science of law and be the torch bearers of a rich legacy left behind by our revered ancestors and thus become guardians of the legal system of this great nation.

Jai Hind!

Compelling Family Responsibility: A Good Cause?

(By Simi John, Asst. Professor, Bharata Mata School of Legal Studies, Aluva)

The lives of Indian women have undergone significant changes since 1990s when compared to their situation in the past. Women empowerment campaigns and legislative actions in this regard have improved the situation of women leading to financial independency and emancipation of her fundamental freedoms. The vital aspects of her privacy including autonomy, dignity and bodily integrity assumed much importance and this has inevitably led to considerable changes in the child bearing pattern also. Despite all these positive changes, the societal attitude towards the job profile of women in the household has not undergone much reformation. The traditional view still holds ground that she is the one who has to do all chores, bring up children, provide for all and being a working woman is no exemption. She is the central axis around which the whole family revolves. Of all roles she plays, the one as a mother is the most vital one not just because she gives birth but more because of the process of nurturance¹ she undertakes. Except for maternity leave, law offers no recognition to this ‘work’ of women. Unable to prioritize her career needs against her family responsibilities, most of the women either quit from their hard earned and much craved for professions or settle for something small wherein she need not compromise her family requirements. The prime question is whether motherhood can be limited to three or six months of time? Should she be handicapped from achieving heights in her career or even from exercising the fundamental right to work because of her role as a mother? The paper attempts to analyze the reasons why women back out from their career prospects and probes whether compelling family responsibilities can be a good cause to avail leave from the organization where she works.

It is often seen in the Indian context that career development of a woman almost ends with her marriage. The societal norms warrants an early pregnancy and she can avail no leave from her duties as a wife, daughter-in-law and most importantly from her role as a mother. The life situations in which she is placed many times renders her helpless and she finds herself in a dilemma not knowing whether to opt family or job. Men do not face such critical decisional crisis much, because the nature of  institutional work is designed in such a way that it suits men more than women and also as it is accepted that woman has to play the role of a shock absorber in the family and mould herself accordingly. The saddest part is that none of the laws in India addresses this family responsibility which compels her to leave her job as a good cause to lawfully avail leave. A country which considers family as the bedrock of society offers no protection to the entity which holds and protects the family even at the cost of her dreams and passions.

We have a plethora of international documents protecting family, motherhood and childhood amongst which Article 16(3) of the UDHR reads as follows:

“The family is the natural and fundamental group unit of society and is entitled to protection by society and state.”

Other international documents also tender recognition to family, marriage and mother-hood in similar terms². Article 10 of the ICESCR, 1966, requires state parties to accord special protection to mothers during a reasonable period before and after childbirth. The Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) views discrimination against women as any sort of difference, exclusion or limitation made on the basis of sex which may harm or invalidate the recognition, enjoyment or exercise of human rights and fundamental freedoms of women in the political, economic, social, cultural, civil or any other field³. The convention also recognizes the inalienable right to work and right to same employment opportunities of both men and women⁴.

 None of these international documents specifically acknowledge another period of time which may necessitate woman to quit her job because of the compulsion of her family responsibilities. The reason why law should take note of this plight of women is because as far as India is concerned, this responsibility is mostly programmed for her. The triple role as a mother, wife and daughter/daughter-in-law qualifies her to solely shoulder instances where one of the family members is terminally ill or differently abled. Though changes have come, still our patriarchal system is more inclined to accept and appreciate a situation where a woman sacrifices her career for family rather than men doing the same. In such a scenario, working women are in need of a supplementary scheme which gives them the benefit of taking additional leave for a reasonable period of time to address such compelling family circumstances without having to renounce the hard earned job. Acknowledging such a need of the women folk would contribute much to the female labour force participation. Governmental institutions have provisions for emergency leave and leave without allowance (subject to approval) and also the Central Civil Services(Leave) Rules, 1972⁵  contain provisions to grant  leave to a woman Government servant as ‘child care leave’ for a maximum period of two years for taking care of up to two children. But the same is not the position as far as non-governmental institutions are concerned.  They are left with no option than to quit the job when confronted with a critical family crisis. There is no alternative available than to do away with her ambitions and the much sought after results of burning the night candles!

In Mini.K.T. v. Senior Divisional Manager (Disciplinary Authority), Life Insurance Corporation of India⁶, the question considered by the Hon’ble High Court of Kerala was whether a State or its instrumentality as an employer can discriminate a woman employee based on compelling family care giving responsibility? In this case a woman was thrown out from service on account of continuous leave she had taken to care for her differently abled child. She had taken extended leave because she was forced to be at Bahrain where she could provide the best treatment to her child. Here the court, acknowledging the absence of a protective legislation in this regard, held that the legality of disciplinary proceedings should be assessed on a broader canvass of fundamental rights in the light of principles of family responsibility developed through international conventions and should not be limited to the rules and regulations of the concerned organization. The court emphasized that no service regulations can stand in the way of a woman claiming protection of her fundamental right of dignity as a mother. The court considered motherhood not as an excuse in employment but as a right which demands protection in given circumstances⁷. For a mother her child is her first priority and that should not be a reason to initiate disciplinary proceedings against her. Not only women but also men may encounter such life situations but such circumstances are more confronted by women when compared to their male counterparts. The court called for a gender neutral law which can help employees to be protected from discrimination based on family responsibility. All instances of family responsibilities cannot be enumerated. So the Legislature has to come up with a strategy which will enable employees to avail leave on account of compelling family responsibilities and which will compel the organizations to have room for such need of the employees. Such a law would be much welcome to the female employees and would also be a great step towards their emancipation and empowerment. A step towards this would be instrumental in protecting motherhood and the dignity, status and self respect of a mother and also the institution of family.

Foot Note:

1. Jasodhara Bagchi, “Interrogating Motherhood”, SAGE Publications India Pvt, Ltd., 2017.

2.  See Article 25(2) UDHR; Art. 23 ICCPR

3.  See Article 1, CEDAW.

4.  See Article 11, CEDAW. 

5. See Rule 43C).

6. 2018 (1) KLT 530 (W.P.(C) No.22007 of 2012(A)).

7. Ibid.