KOCHI: Kerala High Court has observed that becoming a mother is not wrong and, pregnancy or motherhood cannot be seen as an impediment to women's aspirations in public employment.
The court said that gender equality has to be realistic and situational analysis is imperative to bridge the gap of gender differences. If situational reality is not responded to, it may lead to denial of opportunity because of biological factors.
"Men and women are part of procreation but men have the advantage of having no burden of bearing the womb and will be able to march over women in public appointments and women will have to face disadvantages of carrying the womb as the period of maternity may operate on her disadvantage," said the court.
A Division Bench comprising Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen issued the order on the petitions filed by Dr Athira P of Kozhikode and Dr Arya G Krishnan of Kollam seeking permission to apply for the post of Assistant Professor in Radiodiagnosis. One of the prescribed qualifications is that candidates should have one year of experience as a Senior Resident in Radiodiagnosis in an NMC recognised Medical College after acquiring a post-graduate degree.
They were not able to apply for the post notified by the PSC as they did not have the prescribed qualifications as of the last date of receipt of the application. They approached the Secretary to the Government (Health and Family Welfare Department) and the Director of Medical Education with a representation stating that the delay in completing the residency programme was due to the maternity leave availed by them.
Therefore, they may be permitted to apply for the post as they will complete their senior residency programme before the date of the written examination proposed for the selection. The government did not respond and they approached the Kerala Administrative Tribunal. But the tribunal rejected their plea to apply for the post. Hence, they moved a petition in HC.
The Division Bench said that motherhood also produces complex disadvantages. This may result in a gender gap. Non-consideration of disadvantages attributable to motherhood will result in discrimination. The space that addresses the situational reality of a woman is to eliminate adversity and enable women to compete with men on equal parameters.
In a substantive approach, the barriers that may come between the aspirations of women and motherhood are eliminated. Law and regulations need to address such situational reality of women based on maternity while framing rules and regulations related to public employment.
In many situations that may be encountered by women due to maternity cannot be responded to by allowing them to have fair opportunities on account of the scheme of time frame that needs to be given priority. Balancing the individual rights of women and the larger interest of public employment is an exercise that has to be carried out by the State or by PSC after adverting to such individual rights of the women. Non-advertence itself may result in indirect discrimination.
The court pointed out that the biological differences that exist may result in conscious or unconscious bias while developing rules and regulations in the matter of public employment. Our Constitution states both formal and substantive equality.
Formal equality is the result of a conscious approach to treating them equally without there being distinctions or differences in gender attributes. Substantive equality on the other hand focuses on the space, if that space is not allowed to exist, it may result in discrimination based on sex.
A woman in employment or aspiration of employment though stands on equal footing with men regarding consideration in the affairs or chances in the public employment may face disadvantages in having fair opportunities in life due to biological differences, said the court.
The court granted permission to the petitioners to apply for the post. "we make it clear that the petitioners will have to produce the experience certificate within such time as PSC insists upon them," said the Division Bench.