In a judgment handed down last month, a single judge of the Kerala High Court refused to grant relief to a B.Ed student who was disqualified from appearing for her University’s annual examination, since she had been unable to secure the minimum mandatory attendance percentage. The reason for this was her being in an advanced stage of pregnancy. The outcome of the case is something about which reasonable individuals may differ; however, what is disappointing is the judgment’s refusal to situate pregnancy-based burdens within the context of discrimination law:
“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 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 treatment to women enshrined under the Directive Principles or in derogation of the values of motherhood. The petitioner has chosen to expand her family and can only be deemed to have taken a sabbatical from 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 alone; 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.”
The judgment’s choice of language is disturbing: “optional choice“, “personal preference” and “individual predilection” are words that sit ill with the kind of intimate, personal and life-changing decisions involved in pregnancy. Furthermore, the judgment ignores some key conceptual issues around pregnancy and sex discrimination, which have received significant scholarly and judicial treatment (in multiple jurisdictions) over the last few decades: that seemingly “neutral” institutional rules such as attendance requirements are framed from the perspective of the male participant who does not get pregnant (and thereby, in effect, perpetuate systemic discrimination). The judgment makes it out to be the individual’s responsibility to structure and adapt their lives around these (seemingly) “neutral” rules, treating the rules themselves as immutable facts of nature instead of human constructions. In this, the judgment is at odds with last year’s opinion of the Delhi High Court, which we had discussed on this blog; notable, the Delhi High Court’s observation that:
“The choice to bear a child is not only a deeply personal one for a family but is also a physically taxing time for the mother. This right to reproduction and child rearing is an essential facet of Article 21 of the Constitution; it is underscored by the commitment of the Constitution framers to ensure that circumstances conducive to the exercise of this choice are created and maintained by the State at all times… 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.“
It seems that there is still a long way to go before indirect discrimination is acknowledged and acted upon on a consistent basis by the judiciary. A thorough, doctrinal development of equality jurisprudence by the Supreme Court (which is still to advance beyond the “arbitrariness” test of thirty-five years ago) would perhaps be helpful.