The Supreme Court declared a few days after the globe celebrated International Women's Day that government transfer regulations must be humane toward women employees, acknowledging that they share an unequal responsibility as caretakers at home.
While dealing with the controversy surrounding the Central Board of Indirect Taxes and Customs' withdrawal of Inter-Commissionerate Transfers, a bench of Justices D Y Chandrachud and Vikram Nath refused to interact with the policy, instead advising governments to consider the situations faced by women in society and the workplace in order to achieve substantive equality.
While writing the judgment, Justice Chandrachud stated, “... it becomes necessary for the Government to adopt policies through which it produces substantive equality of opportunity as distinct from a formal equality for women in the workplace.”
“Women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and thus, they are burdened with an unequal share of family responsibilities,” he emphasised this point and urged governments to consider it while formulating transfer policies.
According to the bench, “We leave it open to the respondents to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds. Such an exercise has to be left within the domain of the executive, ensuring in the process that constitutional values which underlie Articles 14, 15 and 16 and Article 21 of the Constitution are duly protected.”
Measures to promote substantive equality for women, according to Justice Chandrachud, take into account not just those impediments that limit entry to the workplace, but also those that persist once a woman has acquired access.
The bench further said, “The impact of gender in producing unequal outcomes continues to operate beyond the point of access. The true aim of achieving substantive equality must be fulfilled by the State in recognizing the persistent patterns of discrimination against women once they are in the work place.”
It added, "There can be no doubt that the State, both in its role as a model employer as well as an institution which is subject to constitutional norms, must bear in mind the fundamental right to substantive equality when it crafts the policy even for its own employees.”
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