The High Court of Punjab and Haryana had the occasion to deal with the issue of hidden bias against women in 2016 in the case of Neetu Bala v Union of India presided over by Justice Harinder Singh Sidhu. The matter concerned challenging the denial of employment by the Army Medical Corps (AMC) to a woman solely on account of her pregnancy. The issue arose when the Ministry of Defence issued an advertisement inviting either male or female applicants for grant of Short Service Commission (SSC) in the AMC. The eligibility conditions required the applicant to have passed the final year MBBS examination and be under the age of forty years as on 31 December 2013. There was no condition stipulating that the candidate had to be unmarried.
The petitioner, who fulfilled the eligibility conditions being an MBBS, MD was successful in the interview held on 10 June 2013 and was intimated that she was selected for grant of SSC in the rank of captain. Although she was initially declared unfit in the medical examination on 11 June 2013, she was subsequently declared medically fit by the Appeal Medical Board on 16 July 2013 and was issued an appointment letter dated 16 January 2014. The appointment letter stated that she had been found fit by the medical board, but she would be required to undergo medical inspection on reporting to the unit to simply confirm that there was no deterioration in her health status.
As desired, she reported for duty on 10 February 2014 to the commandant of the Military Hospital, Pathankot for commencement of employment. After her medical examination, she was informed that she was medically fit and free from contagious disease. However, they noted that she was seven months pregnant but with no complications, and since there were no clear guidelines on whether pregnancy could be construed as “deterioration of health”, she was asked to wait pending clarification on the matter from the headquarters. Thereafter, on 20 February 2014, she was informed that she was unfit to join service. This decision was based on the terms and conditions of service of officers granted SSC (Army Instructions 75/78), wherein the letter dated 22 October 2009 provided that all female candidates would be screened for pregnancy and detection of the same would render a candidate ‘unfit’ for commissioning.
Upon receiving the communication of the denial of appointment, the petitioner requested that the vacancy be kept for her so that she could join service after delivering the child. Receiving no response on her request, she petitioned the Punjab and Haryana High Court. The Union of India contended that since the petitioner was seven months pregnant, she was not in a position to undertake the strenuous physical training activities or service in the field that was expected from a newly commissioned medical officer. Further, justifying the denial of the request to keep the post vacant till delivery, it was stated that that as per the offer of appointment, no request of change of service, place of posting or extension of date of joining could be accepted. The vacancy which had remained unsubscribed due to any reason was to be passed on to the next candidate in the merit list prepared at the time of the interview.
The question before the high court, therefore, was whether “the denial of appointment to the petitioner holding her to be ‘unfit’ solely on account of pregnancy is legal and justified?”
The court upheld the claim of the petitioner that pregnancy could not be treated as a disqualification for appointment in the AMC. The reasoning of the court was based on both national and international jurisprudence on the subject and merits close attention.
The court held that denial of appointment to the petitioner on the pretext of pregnancy was against the mandate of Articles 14, 15 and 16. Article 16 specifically prohibited gender discrimination (pregnancy disability) in matters of public employment. Citing precedents from India and the US, Justice Harinder Singh Sidhu, in para 24 observed:
. . . in cases where a married woman is not disqualified for appointment, the fact that she is pregnant, cannot be a disqualification for continuing with appointment. Nor can pregnancy, in such circumstances, be treated as a bar to be appointed. Any inability to discharge duties during the months, before and after childbirth, can be taken care of by granting maternity leave for the period required.
The Constitution of India provides the basis for challenging such exclusionary practices circumscribing women’s employment opportunities based on pregnancy. The act of exclusion of women from employment based on pregnancy confirms the second-class standing of women in workplaces. The decision of the court in prohibiting pregnancy discrimination is significant, as it strikes at the societal assumption that rationalises inequality and discrimination with seemingly neutral rules that justify gendered discrimination.
Organisational structures often carry cultural and gender biases. Pregnant women in particular are perceived as burdensome because they may not align with the idealised “male worker norm”. Men, on the other hand, are commonly assumed to exhibit higher commitment levels, unencumbered by the responsibilities of bearing and rearing children. These perceptions contribute to the perpetuation of a patriarchal perspective, suggesting that women cannot effectively balance the roles of being good mothers and competent workers simultaneously.
Rules that deny employment to women based on the temporary condition of being pregnant are discriminatory and arbitrary. The court, by holding that where a married women is not otherwise disqualified for appointment, her being pregnant cannot be a disqualification, controverted the established societal perception against a pregnant woman. Pregnancy is not a disability but is a natural consequence of marriage and married life.5 Such exclusionary practices against women are incorrectly and stereotypically justified on the basis of women’s reproductive role. The assumption that pregnancy is incompatible with certain jobs is the severest in fields where women have historically faced isolation.
The Punjab and Haryana High Court further held in Neetu Bala that such treatment of pregnant women would “fall foul of Article 42 of the Constitution which requires the State to make provision for securing just and humane conditions of work and for maternity relief” (para 25). It may be pointed out that Article 42 is a Directive Principle of State Policy and, as a result, is not directly enforceable. Nevertheless, it is available for determining the legal validity of the discriminatory action. Directive Principles cannot be disregarded entirely, effort must be employed to provide a relevant role for them in constitutional interpretation. They must be used to concretize the abstract concepts of fundamental rights. In simple terms, they must be used to enhance the meaning of fundamental freedoms and rights.
Excerpted with permission from ‘Can Women Be Ambitious and Pregnant? Neetu Bala v. Union of India’ by Shruti Bedi in In Her Defence: Ten Landmark Judgments on Women in the Armed Forces, edited by Navdeep Singh and Shivani Dasmahapatra, Penguin India.
