In March this year, the University Grants Commission (UGC) invited public comments on its draft regulations (hereinafter, ‘Draft UGC Regulations, 2022’) for Ph.D. studies in India. The Draft UGC Regulations, 2022 inter alia recognise maternity leave/child care leave to women candidates for up to 240 days, once in the entire duration of the Ph.D. program.
This follows the December 2021 announcement by the UGC directing Higher Education Institutions (HEIs) in India to frame policies providing maternity leave benefits to women students. The issue of grant of maternity leave for research students in India has also been the subject of court cases in the past. This article focuses on the current laws and policies in India which provide for parental leave for students enrolled in HEI.
The case for granting maternity leave to students
The case for the grant of maternity benefits to students is based on gender equality and equal opportunity for women. Recognising this, the Calicut University in 2013, became the first university in India to grant maternity leave to female students. Specifically, Calicut University amended its MCA course regulations in 2010 to avail long-term leave for maternity reasons and join the subsequent batch. The amendment allowed such students to appear in the end-semester examination as “first chance” instead of “supplementary chance” (which was the norm before the amendment).
Further, Article 42 of the Constitution of India empowers the State to make provisions for just and humane work conditions and maternity leave. Women in India can avail maternity leave from work under the Maternity Benefit Act, 1961 (hereinafter, ‘1961 Act’) which regulates the employment of women in certain establishments for a certain period before and after child-birth, and also makes provisions for maternity benefits and related benefits.
The 1961 Act, however, applies to establishments (including factories, mines, and plantations) specified by the government and does not apply to educational institutes. Maternity leave benefits for research students in India were first recognised in the UGC Minimum Standards and Procedure for Award of M.Phil./Ph.D. Degrees) Regulations, 2016 (hereinafter, ‘UGC Regulations, 2016’).
Government regulations regarding maternity leave for students enrolled in HEI
The UGC Regulations, 2016 currently govern the grant of research degrees (M.Phil./Ph.D.) in India. Similar to the Draft UGC Regulations, 2022, the UGC Regulations, 2016 provide for maternity leave/child care leave for women candidates up to 240 days once in the entire duration of the M.Phil./Ph.D. program.
The recognition of maternity leave or child care leave for university students is a measure that runs parallel with other measures by the UGC to facilitate women pursuing research in India. For instance, the UGC Regulations, 2016 provide for the transfer of research data to the university where the student relocates in cases of relocation of an M.Phil./Ph.D. woman scholar due to “marriage or otherwise”. The Draft UGC Regulations, 2022 also carry a similar provision.
Notably, the UGC (Minimum Standards and Procedure for Awards of M.Phil./Ph.D. Degree) Regulation, 2009 (which was superseded by the UGC Regulations, 2016) did not recognise maternity leave/child care leave for research students. Interestingly, the UGC issued a circular (dated 14 December 2021) on the subject of maternity leave to women students.
The circular requests Vice-Chancellors of all universities to frame appropriate rules/norms for granting maternity leave to women students, as well as provide all relaxations/exemptions relating to attendance, the extension of due date for submitting examination forms, or any other facility deemed necessary for women students pursuing undergraduate (UG) and postgraduate (PG) courses in their respective universities/affiliated colleges.
The All India Council for Technical Education (AICTE) Doctoral Fellowship Scheme 2021-22, expressly recognises that research scholars are eligible for maternity/paternity leave as per the government norms at full rates of fellowship, etc., once during the tenure of their award. The AICTE doctoral fellowship was previously the AICTE National Doctoral Fellowship Scheme; an earlier iteration of the scheme which only recognised maternity leave for Ph.D. students and not paternity leave.
Indian court judgments dealing with maternity leave for university students
The call for maternity benefits for college students in India is not new. In 2019, it was reported that women students at Government Law College, Ernakulam had emailed 200 postcards to the Vice-Chancellor (VC) of Mahatma Gandhi University (MG University), urging the VC to sanction maternity leave for students who get married and pregnant while pursuing the LL.B. course.
The students pointed out the difficulty in meeting the mandatory 75 percent attendance rule set by the MG University, as pregnant students require at least two months to recover from childbirth, and are compelled to repeat a year as they cannot meet the attendance requirement.
The Kerala High Court has in the past, ruled that a woman enrolled in a professional course may not be given relaxation from the minimum attendance rule on the ground that she was unable to attend classes due to her advanced stage of pregnancy. Unfortunately, the court, in this case, ruled that the circumstances of the woman are not exceptional (justifying waiver of the attendance rule) as pregnancy is not a “medical condition visited on the petitioner unexpectedly”, and that the woman should have adjusted her priorities accordingly.
Interestingly, Kannur University (which was the respondent in this case) amended its regulations in 2019 to expressly allow female students in any programme to avail of maternity leave once during the entire duration of the programme and for a period not exceeding 6 months.
A more progressive view was taken by the Delhi High Court in 2010 when hearing a batch of petitions filed by certain LL.B. students of Delhi University against the university for not allowing them to take exams as the students did not meet the attendance criterion on account of being pregnant. The Delhi High Court, relying on Article 42 of the Constitution, ruled in favour of the petitioners and observed, “[…] to punish a woman for becoming a mother would surely be the mother of all ironies”.
As recently as December 2021, the Allahabad High Court directed Dr. APJ Abdul Kalam Technical University in Lucknow to allow a woman student who was enrolled in the B.Tech. programme to take university examinations, which she was unable to do earlier as she was pregnant at that time. In addition, the court directed the university to frame the requisite regulations/ordinances, etc., for grant of prenatal/ postnatal support and other maternity benefits to expectant and new mothers who were pursuing various courses at the university.
The court relied on the UGC circular of 2021 asking universities to make provisions for grant of maternity leave to UG as well as PG students. Importantly, the court ruled that allowing maternity leave to only certain PG students of the university and not the UG students was in fact, a violation of Articles 14 (right to equality), 15(3) (special provision for women and children) and 21 (right to life and personal liberty) of the Constitution.
Rulings such as those by the Delhi High Court and the Allahabad High Court are a step in the right direction of recognising the need for securing maternity benefits for women students in India. Last December, the government amid much controversy, introduced the Prohibition of Child Marriage (Amendment) Bill, 2021 (hereinafter, ‘2021 Bill’) which sought to increase the minimum age of marriage for women from 18 to 21 years.
The Statement of Objects and Reasons of the 2021 Bill cites that ‘women are often put to [sic] disadvantageous position regarding higher education, vocational instruction […]’, and purportedly aims to make women a part of the workforce and self-dependent before they marry. Such measures alone, however, would not help achieve gender equality and would have little meaning if equality of opportunity is not given full effect.
Therefore, laws and policies must be geared towards supporting mothers in pursuing their education and career so that women are not put in an uncomfortable position of choosing either family or career.
Devika is a lawyer empanelled with the Ministry of Women & Child Development as a resource person with expertise on the PoSH law. She also runs Women & Justice, a research and awareness initiative. She is on Twitter and LinkedIn