Women and girls are the key. If we fail them, we fail their children, we fail their communities, and we fail the very idea of human progress.
Carol Bellamy TARIQ SALEEM SHEIKH, J.---In 2015, the Punjab Workers Welfare Board ("PWWB") appointed the Petitioners as internees for six months. However, it kept extending the period of their employment though it did not regularize them. The Petitioners have filed Writ Petition No. 58975/2020 in this Court for regularization of their service which is pending. At present, Petitioner No.1 is serving as Junior Teacher (Science). while Petitioner No.2 works as an Elementary School Educator (English) at the Workers Welfare School (Evening Class) at Faisalabad. The Petitioners applied to Respondent No.4 for a grant of maternity leave for 9 days but he refused to entertain their applications and, on 26.8.2022, through a verbal order, declined their request on the ground that it was inadmissible under the Internship/Retainership Policy, 2014 (the "Policy of 2014"). They seek a writ of mandamus against Respondent No.4 for grant of the aforesaid leave through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution").
2. The Petitioners contend that maternity leave is the fundamental right of every woman and they are entitled to it even if their contract or the Policy of 2014 that governs them does not provide for it.
They submit that this Court issued a writ against PWWB in Sobia Nazir v. Province of the Punjab (2022 LHC 2414) in identical circumstances so they may also be granted relief.
3. The Assistant Advocate General has raised a preliminary objection that this constitutional petition is not maintainable because the Petitioners are contractual employees. On merits, he contends that the Petitioners' service is governed by the Policy of 2014 under which only two leaves are allowed in a month. Any further leave is without pay. An individual cannot have more than seven leaves in a month except in a case of extreme hardship. He adds that the Policy of 2014 does not contain any provision for maternity leave so the Petitioners cannot ask for it.
Discussion
4. The Respondents have raised a preliminary objection relating to the maintainability of, this constitutional petition. In Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 SC 45) and Government of Sindh and others v. Nizakat Ali and others (2011 SCMR 592) the Hon'ble Supreme Court of Pakistan held that the question of jurisdiction should be decided first, ahead of all other issues. I proceed accordingly.
Maintainability
5. Sir John Salmond defines "right" as a legally recognized and protected interest. Therefore, "any interest which the law recognizes or enforces, whatever be the nature or extent of that recognition or enforcement, is a legal right."[1] Fundamental rights are the basic rights and freedoms which are available to everyone in a country though some may be restricted to its citizens. According to Justice Jackson of the United States Supreme Court, the purpose of the fundamental rights is to "withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of the majorities and officials and to establish them as legal principles to be applied by the courts."[2] Similarly, in Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), the Supreme Court of Pakistan said that fundamental rights, in essence, are restraints on the arbitrary exercise of power by the State concerning any activity in which an individual can engage. Chapter 1 of Part 11 of the Constitution of 1973 contains an explicit statement regarding the rights of individuals and members of larger groups, such as the community or religious denomination.
6. It is now firmly established that the courts should have a progressive approach while interpreting the Constitution. Justice Frankfurter explained the raison d'etre therefor in Sweezy v. New Hampshire (1957) 354 US 234, which the Supreme Court of Pakistan approved in Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473). He wrote: "... while the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed to give a new and fuller import to its meaning." In Al- Jehad Trust and others v. Federation of Pakistan and others (PLD 1996 SC 324), Ajmal Mian, J. of the Supreme Court of Pakistan, said that a written Constitution is an organic document designed and intended to meet the needs of all future generations. It is like a living tree that grows and blossoms over time to keep up with the country's and its people's development. Thus, when interpreting a constitutional provision, the approach should be dynamic, progressive and' driven by a desire to address the situation effectively. The interpretation must not be restricted or pedantic.
7. The above principle is applied more vigorously to interpret the constitutional provisions relating to fundamental rights. In The Minister of Home Affairs and the Minister of Education v. Collins MacDonald Fisher and Eunice Carmeta Fisher (1979) 3 All ER 21, Lord Wilberforce held: "
[Fundamental rights] call for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism', suitable to give to individuals the full measure of the fundamental rights and freedoms referred to." The courts in India and Pakistan hold the same view. In Maneka Gandhi v. Union of India,(AIR 1978 SC 597) the Supreme Court of India held that it is not essential that every right should be enumerated as a fundamental right in the Constitution. It can be claimed even if it is a crucial component of another named fundamental right or if its recognition is required for a named fundamental right to be exercised meaningfully and effectively. In Government of Sindh and others v. Mst. Najma (2001 SCMR 8) the Supreme Court of Pakistan held that the superior courts must protect fundamental rights and, to this end, they can exercise all incidental' and necessary powers and can also adopt new strategies. In Jurist Foundation v.
Federal Government through the Secretary Ministry of Defence and others (PLD 2020 SC 1) the Supreme Court ruled that "fundamental rights in a living Constitution must be liberally interpreted so that they continue to embolden freedom, equality, tolerance and social justice." In Hafiz Junaid Mahmood v. Government of Punjab and others (PLD 2017 Lahore 1) this Court held that "fundamental rights are the heart and soul of a living Constitution and must be ready to embrace and protect the sensibilities and sensitivities of the people at all times. They must be progressively and purposively interpreted to advance the frontiers of freedom, individual autonomy and free choice. Such vibrancy and vitality is the hallmark of a living Constitution in a democracy."
8. Article 199 of the Constitution confers the power of judicial review on the High Courts which reads, in relevant part, as follows:
199. Jurisdiction of High Court.---(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law-
(a) on the application of any aggrieved party, make an order-
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order-
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the fundamental rights conferred by Chapter 1 of Part II.
9. Article 199(1)(c) of the Constitution is most relevant for our present purpose. It provides the remedy for enforcing the fundamental rights guaranteed by Chapter 1 of Part II of the Constitution.
3. In Ch. Manzoor Elahi v. Federation of Pakistan and others (PLD 1975 SC 66), the apex Court ruled that the High Court's powers under Article 199(1)(c) of the Constitution are expansive and it can exercise them not only where a citizen's fundamental right is offended but also to enforce an individual's right under Article 4 which is inalienable. The said Article states:
4. Right of individuals to be dealt with in accordance with law, etc.- (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular-
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not required him to do.
10. In Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others (PLD 2009 SC 507), the Hon'ble Supreme Court of Pakistan held that the High Court's jurisdiction in matters of fundamental rights is broader under clause (c) of Article 199(1) of the Constitution than it is under clauses (a) and (b) of that Article. It is not limited to public functionaries and can be extended to private parties if fundamental rights are violated. A relevant excerpt is reproduced below: "32. ... in the scheme of our Constitution, the power to enforce fundamental rights has been conferred upon the superior courts through Articles 199(1)(c) and 184(3). It may be seen that under Article 4 everybody has to be treated in accordance with the law and under Article 8, a law inconsistent with fundamental rights is to be treated as void. Therefore, even in the-absence of clause (c) any action by a person performing functions in connection with the affairs of the Federation, a Province or a local authority, inconsistent with fundamental rights is to be declared, without lawful authority under the clause (a) of Article 199.
"33. The reach of clause (c) however is wider. It not merely enables a court to declare an action of a State functionary inconsistent with fundamental rights to be unlawful but also enables the courts to practically enforce such rights by issuing appropriate directives as is evident from its language ... the jurisdiction of superior courts to enforce fundamental rights under Article 199(1)(c) of the Constitution is not merely exercisable against persons performing functions in connection with the affairs of the Federation or Province or a local authority but against any person or authority, including a Government. Some of the fundamental rights by their very nature may be impaired by private persons and there is no embargo on the powers of the High Court to issue such direction as may be appropriate for enforcement of such rights."
11. In Abdul Wahab and others v. HBL and others (2013 SCMR 1383), the Hon'ble Supreme Court observed that the fundamental rights granted by our Constitution are sacred, and one of the primary duties of the State and its institutions at all levels is to respect and enforce them. The sanctity and significance of these fundamental rights are reflected in Article 8 of the Constitution, which mandates that any law, rule or regulation inconsistent with them is void. Article 8(2) prohibits the State from enacting any law that deprives or curtails the rights conferred. Any legislation which contravenes that clause is void to the extent of such infraction. Given the sanctity and significance of these rights, the Constitution provides a special mechanism to protect them in terms of Article 199(1)(c). It grants an extraordinary power to the High Court to make an order giving directions to any person as may be appropriate for the enforcement of the fundamental rights conferred by Chapter 1 of Part II. Moreover, a bar has 'been placed on the State in terms of Article 199(2) which stipulates that, subject to the Constitution, the right to petition the High Court for the enforcement of such rights shall not be syncopated.
12. In Pakistan Olympic Association and others v. Nadeem Aftab Sindhu and others (2019 SCMR 221), while reiterating the principle laid down in the above-mentioned two cases, the Hon'ble Supreme Court held that a plain reading of Article 199(1)(c) reveals that a High Court has the authority to issue a direction necessary for the enforcement of any fundamental right guaranteed by the Constitution to any person or authority within its jurisdiction, including but not limited to the Government. This is, however, subject to two conditions: (i) such direction is issued on an application of any aggrieved person, in other words, the High Court cannot do so suo mom; and
(b) no other adequate remedy is provided by law. The apex Court noted that the meaning of Article 199(1)(c) becomes clearer when it is read in conjunction with Article 199(5) which states that " 'person' includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the armed forces of Pakistan." The Court said: "The key question is that whether the condition of "of or under the control of the Federal Government or of a Provincial Government" applies only to "any authority" or will it also apply to "any body politic or corporate" and we find that such condition only applies to "any authority" and not "any body politic or corporate". We hold so for the reason that a coma has been used between the two sets of phrases, i.e. "any body politic or corporate" and "any authority of or under the control of the Federal Government or of a Provincial Government" which differentiates the two; besides, the word "any" is used separately for both sets of phrases. In fact, the word "any" is also used with the third phrase/set of bodies, i.e. "Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan", creating three distinct categories. Thus, in light of the' foregoing interpretation, a writ is maintainable under Article 199(1)(c). of the Constitution against any person including the body politic or corporate for the purpose of enforcement of any of the fundamental rights conferred by the Constitution."
13. A Full Bench of this Court held in Noor Badshah v. United Bank Limited and others 2019 PLC (C.S.) 1433] that directions under Article 199(1)(c) of the Constitution can be made to any person, which in appropriate circumstances can include a private person, for enforcement of fundamental rights conferred by Chapter 1 of Part II of the Constitution In cases involving (i) bonded or forced labour; (ii) wrongful detention; (iii) restoration of liberty and freedom of movement; (iv) likelihood of any hazard to life by pollution. (Obviously, this list is illustrative and not exhaustive).
14. The basic principle is that an individual cannot invoke the constitutional jurisdiction of the High Court under Article 199 if the terms of his employment are governed by a contract rather than statutory rules. If he has any grievance, he should seek redress in an ordinary court of competent jurisdiction.[4] However, even in the case of a contractual employee, the High Court can entertain a writ petition if there is a question of infringement of fundamental rights. In Dr. Aamna Saleem Khan v. National University of Sciences and Technology, Islamabad, and 4 others [2021 PLC (C.S.) 212] the Petitioner was serving as Associate Professor in the School of Social Sciences and Humanities, National University of Sciences and Technology, Islamabad. She developed certain complications during her pregnancy and was advised rest. She applied for maternity leave which was initially allowed but then the university asked her to resign for "a graceful exit." She did not do so whereupon it terminated her services. The lady approached the Islamabad High Court where the university raised an objection regarding maintainability of 'her writ petition. The Court nixed the objection holding as under: "Learned counsel for the respondent University has taken the stance that the Petitioner being contract employee is debarred from approaching this Court, hence, instant petition 'is not maintainable. However, the instant writ petition has been taken up by this Court while keeping in view the violation of fundamental rights of a woman and it is the primary duty of the constitutional 'Court to protect the fundamental rights of a citizen, especially a woman, who is going to become mother and she has been penalized for availing maternity leave, which otherwise is a condemnable act on the part of an employeer and that too after granting her such leave. In these circumstances, the Court while exercising extraordinary constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot throwaway the prayer of the Petitioner on mere technicalities. In this regard, I am fortified with the view 'rendered by the apex Court in a case reported as 2019 SCMR 84 (Taj Wali Shah v. Bakhti Zaman) that any right vested in a person to seek his remedy under the law should be liberally construed as it would bolster his recognized fundamental right of access to justice."
15. In the present case, the Petitioners have assailed the Policy of 2014. Their grievance is that it violates their right to maternity leave, and they seek its enforcement, claiming it is their fundamental right. Indeed, this is a distinct cause of action because it does not arise from the contract. The Delhi High Court held in Seema Gupta v. Guru Nanak Institute of Management [135 (2006) DLT 404] that the employee's request for an extension of her maternity leave under the employment regulations should be interpreted as an exercise of her fundamental rights rather than a traditional case of enforcement of contract. Therefore, I hold that this petition is maintainable.
Right to safe motherhood
16. Maternity is not a disease but a social function. "It is the means by which the human species is propagated. Pregnancy and childbirth are a privileged function of a woman, essential for the survival of our species."[5] According to the World Health Organization estimates, approximately 810 young women die every day from causes related to pregnancy and childbirth. In 2017, about 295,000 women died during pregnancy and childbirth.[6] At least seven million postpartum survivors have serious health problems, and an additional 50 million have poor health after giving birth. Out of these 90% occur in developing countries. Fathalla posits that the cumulative denial of women's human rights is the frequent cause of maternal deaths in these countries. Women do not die due to incurable diseases but because societies have yet to decide that their lives are worth saving.[7]
17. A woman's right to safe motherhood is not only a right to health but also a right to life.[8] Safe motherhood means providing women with the necessary care to ensure their safety and health during pregnancy and childbirth.[9] Article 25 of the Universal Declaration of Human Rights (UDHR)
(1948) recognizes the right to health and proclaims that motherhood and childhood are entitled to special care and protection. It reads:
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
18. Article 10(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
(1966) enjoins that "special protection should be accorded to mothers during a reasonable period before and after childbirth. Working mothers should be accorded paid leave or leave with adequate social security benefits." Article 12(2)(b) of the ICESCR requires the State Parties to take necessary steps to reduce still-births and infant mortality and to promote children's health. Article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979) calls upon the States Parties "to introduce maternity leave with pay or with comparable benefits without loss of former employment, seniority or social allowances." Article 12(2) of CEDAW obligates the States Parties to ensure necessary services to the women during pregnancy, confinement and the post-natal period, including the provision of adequate nutrition.
Article 24(2)(a) of the Convention on the Rights of the Child (1989) also requires the State Parties to strive to reduce infant and child mortality and Article 24(2)(d) requires them to ensure pre-natal and post-natal health care for mothers.
19. Article 2(1) of the ICESCR requires a country to take steps, to the greatest possible extent, to "achieve progressively the full realization" of the rights recognized in ICESCR. In General Comment No.3[10] the Committee on ESCR, which issues General Comments to assist the interpretation of particular provisions of the ICESCR rights, has stated that, despite the provision for progressive realization, two obligations take effect immediately. There is the commitment in Article 2(1) of the ICESCR to "take steps" and the assurance in Article 2(2) that the Covenant's rights will be exercised without discrimination. This means that the country should take steps toward implementing the Covenant's rights as soon as it becomes a party to the Covenant. These steps must be concrete and aim at meeting the Covenant's obligations. If the State takes regressive measures to achieve economic, social and cultural rights, it must justify them adequately. A retrogressive step restricts the scope of a legally protected economic, social, or cultural freedom. The United Nations Committee on Elimination of Discrimination Against Women has issued General Recommendation No.24 on women and health stating that sex discrimination occurs when women's health needs, such as maternity care, are ignored.[11]
20. The International Labour Organization (ILO) has developed international labour standards to protect pregnant and nursing working women as they are especially vulnerable. It recognizes that they need extra care to prevent harm to their health and their child's health. They should have enough time to give birth, recover, and nurse their infant. They also need protection so that they do not lose their jobs due to being pregnant or taking maternity leave. Such protection ensures that women have equal access to employment and continue to generate the income required for their own and the family's financial security. Safeguarding the health of expectant and nursing mothers and protecting them from job discrimination is a prerequisite for achieving genuine equality of opportunity and treatment for men and women at work and enabling workers to raise families in economic security.[12] The ILO first recognized the importance of the issue of "maternity protection" - as it is called - in 1919 when it adopted C-3. The second ILO maternity protection convention (C- 103) was adopted in 1952, and it was reinforced by the recommendation R-95. The third convention (C-183) was adopted in 2000, and the recommendation R-191 followed it. Additionally, C-184 (2001) deals with agricultural safety and health, and C-189 (2011) deals with decent working conditions for domestic workers, are important.[13]
21. The Sustainable Development Goals (SDGs) aim to change the world by eradicating poverty and inequality, protecting the environment and ensuring everyone has access to health, justice and prosperity.[14] In 2015, the UN member countries adopted the 2030 Agenda for Sustainable Development, establishing 17 goals and 169 targets. These Goals are broad, diverse and interconnected. SDG 3 aims to ensure healthy lives and promote well-being for all people of all ages. It has 13 objectives that are tracked by 26 indicators: A person's health and well-being are impacted by disease and treatment and social and economic factors like housing, poverty, and education. Hence, all the SDGs include health-related targets. Women who maintain their health during and after pregnancy have a higher chance of maintaining their health later in life and having better birth outcomes, influencing their children's health from infancy to adulthood.
Maternal mortality reduction remains a priority under the SDGs Agenda through 2030. In February 2015, the World Health Organization published "Strategies toward ending preventable maternal mortality" (EPMM Strategies), to outline global strategies based on a human rights approach for reducing maternal mortality under the SDGs. They especially focus on eliminating inequities that lead to disparities in access, quality, and health care outcomes within and between nations.[15]
22. Pakistan is a signatory to the UDHR and has ratified ICESCR, CEDAW. Besides, she has ratified the World Health Organization Constitution (1946) whose preamble says: "the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition." Apart from it, under Article 35 of the Constitution the State is obligated to protect the marriage, the family, the mother and the child and Article 37(c) requires it to ensure maternity benefits for women in employment.
23. Article 9 of our Constitution (1973) sanctifies the right to life. This is the most valuable human right and serves as the ark for all other rights so it must be interpreted broadly and expansively to imbue it with significance and vitality that will last for years and enhance the dignity of the individual and the worth of the human person.[16] In Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693) the Hon'ble Supreme Court of Pakistan held it covers all facets of human existence.
Salim Akhtar J. wrote: "The word 'life' has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally." In view of this dictum, the right to ,life has been "expanded to as to include, for example, the right to legal aid; the right to a speedy trial; the right to bare necessities of life; protection against adverse effects of electromagnetic fields; the right to pure and unpolluted water; the right of access to justice";[17] the right to livelihood and the freedom to travel. In my opinion, Article 9 of the Constitution also protects the right of women to safe motherhood - not just motherhood - as a fundamental right. "Motherhood shouldn't be a death sentence."[18] Women have the right not to die during pregnancy or childbirth. When they put their lives in danger to give birth, they have the right to have their own lives and health protected. A pregnant woman carries a country's future generation. Safe motherhood is imperative for a healthy future generation.[19]
24. As adumbrated, sex discrimination occurs when women's health needs, such as maternity care, are neglected. On this touchstone, violation of the right to safe motherhood constitutes an infringement of Article 25 of the Constitution. Besides, it offends the women's right to dignity guaranteed by Article 14(1), a right which is absolute, non-negotiable and inviolable. Aharon Barak explains the role of human dignity as a constitutional value as follows: "The constitutional value of human dignity has a central normative role. Human dignity as a constitutional value is the factor that unites the human rights into one whole. It ensures the normative unity of human rights. This normative unity is expressed in the three ways: first, the value of human dignity serves as a normative basis for constitutional rights set out in the constitution; second, it serves as an interpretative principle for determining the scope of constitutional rights, including the right to human dignity; third, the value of human dignity has an important role in determining the proportionality of a statute limiting a constitutional right.[20]
25. In Fred Khumalo v. Bantubonke Harrington Holomisa [2002 (5) SA 401], the Constitutional Court of South Africa held: The value of human dignity in our Constitution is not only concerned with an individual's sense of self-worth, but constitutes an affirmation of the worth of human beings in our society. It includes the intrinsic worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements. The value of human dignity in our Constitution therefore values both the personal sense of self-worth as well as the public's estimation of the worth or value of an individual."
26. Similarly, in Barrister Asfandyar Khan and others v. Government of Punjab and others (PLD 2018 Lah. 300) Syed Mansoor Ali Shah, J. of this Court[21] wrote: "Dignity has its roots in the simple idea that justice consists of the refusal to turn away from suffering. Most central of all human rights is the right to dignity. Dignity unites other human rights into a whole. The right to dignity reflects the recognition that a human being is a free agent, who develops his body and mind as he wishes, and the social framework to which he is connected and on which he depends. Human dignity is therefore the freedom of the individual to shape individual identity. It is the autonomy of the individual will and the freedom of choice. Human dignity is infringed if a person's life or physical or mental welfare is harmed."[22]
27. To sum up, the right to safe motherhood is a fundamental right under Article 9 of the Constitution and its violation also constitutes an infringement of Articles 14(1) and Article 25.
Right to maternity leave
28. The right to maternity leave entitles working women to paid leave or social security benefits during a reasonable period before and after childbirth. In General Comment No.3[23] the Committee on ESCR has stated that this right protects them against loss of employment and/or seniority to prevent gender discrimination. In General Comment No.19 the Committee has stated:
24. "Article 10 of the Covenant expressly provides that 'working mothers should be accorded paid leave or leave with adequate social security benefits'. Paid maternity leave should be granted to all women, including those involved in atypical work, and benefits should be provided for an adequate period. Appropriate medical benefits should be provided for women and children, including perinatal, childbirth and post-natal care and care in hospital where necessary."
29. Maternity leave for working women is essential for safe motherhood. "It is the basic element of maternity protection.[25] Since safe motherhood is the fundamental right of every woman, the right to maternity leave should also have the same status. This right may also be justified under Articles 3 and 11 of the Constitution. Article 3 obligates the State to ensure the elimination of all forms of exploitation and gradual fulfillment of the principle from each according to his ability to each according to his work. Article 11 prohibits all forms of forced labour. This Court also held in Sobia Nazir v. Province of the Punjab etc. (2022 LHC 2413) that Article 11 would be violated if a woman is compelled to work during advanced stages of pregnancy or immediately after childbirth.
30. We have various laws in Pakistan which address the issue of maternity leave in different sectors.
These include the Mines Maternity Benefit Act 1941, and the Revised Leave Rules of 1980 (framed under Section 25 of the Civil Servants Act, 1973). The Governor of the Punjab has also issued the Revised Leave Rules of 1981 in the exercise of the powers conferred under section 23 of the Punjab Civil Servants Act, 1974.
The present case
31. I have already held that safe motherhood is the fundamental right of every woman and the right to maternity leave, being its subset, has the same status and should be reckoned as such. The Respondents cannot deny that right to the Petitioners merely because the Policy of 2014 does not provide for it. Article 8(2) of the Constitution prohibits the State from making any law - and by extension, any policy - that bereaves or abridges the rights guaranteed by Chapter 1 of Part II of the Constitution.
32. In view of the above, the Petitioners are entitled to avail maternity leave with pay without any impact on their career. This Court has issued a writ against PWWB in Sobia Nazir v. Province of the Punjab etc. (2022 LHC 2413) in identical circumstances. Respondent No.4 should have followed the dictum laid down in that case and approved the Petitioners' request for maternity leave.
33. This petition is accepted.
1. A. K. Brohi, Fundamental Law of Pakistan (1958), p. 301
2. West Virginia State Board of Education et al v. Barnette et. al. (1943) 319 U.S. 624. Approvingly cited by Lord Bingham in A (FC) and others v. Secretary of State for the Home Department (2004)
UKHL 56.
3. Article 184(3) of the Constitution stipulates that if the Supreme Court considers that a question of public importance involving the enforcement of any of the fundamental rights conferred by Chapter 1 of Part II, it shall have the power to issue an order of the nature specified in Article 199.
4. Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194); Aurangzeb v. Messrs Gool Bano Dr. Burjor Ankalseria and others (2001 SCMR 909); Federation of Pakistan, Chamber of Commerce and Industry, Karachi v. Ali Ahmed Qureshi (2001 SCMR 1733) and Pakistan Telecommunication Co. Ltd. v. lqbal Nasir and others (PLD 2011 SC 132).
5. Mahmoud F. Fathalla, Human rights aspects of safe motherhood, Best Practice and Research Clinical Obstetrics and Gynaecology Vol. 20, No. 3, pp. 409e419, (2006) doi:10.1016/j.bpobgyn.2005.11.004 available online at http://www.sciencedirect.com
6. https://www. who. int./news-room/fact-sheets/detail/material mortility
7. See: Note 5, ibid.
8. Concerning CEDAW's Comments on maternal mortality and the right to life, see for example, para 56, U.N. Doc. A/54/38 (1999); paragraph 393, U.N.Doc A/54/38 (1999); and paragraph 224, U.N.
Doc. A/49/38 (1994).
9. A.Z.M. Arman Habib, Safe motherhood is a human right, The Daily Star Imps:/www.thedailystar.net/law-our-rights/safe-motherhood-human-right-83695
10. Adopted on 14 December 1990
11. United Nations Committee on the Elimination of Discrimination against Women (CEDAW).
General Recommendation 24. https:// www.unorg/ womenwatch/ daw /cedaw /recommendations /recom. Htm # recom24; 1999
12. International Labour Standards on Maternity Protection. Available at: https://www.ilo.org/global/ standards/subjects-covered-by-international-labour- standards/maternity-protection/lang en/index.htm
13. N. Harooni, Maternity Protection at the Workplace, Available at: https://waba.org.my/pdf/MaternityProtectionattheWorkplacefinal.pdf
14. World Health Organization. Regional Office for Europe. ( 2017) . Maternal health: fact sheet' on Sustainable Development Goals ( SDGs) : health targets. World Health Organization. Regional Office for Europe. https://apps.who. int/iris/handle/10665/340843
15. The Sustainable Development Goals and Maternal Mortality. https//www.mhtf.org/topics/the- sustainable-development-goals-and-maternal-mortality/
16. Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others (AIR 1981 SC 746).
17. Fazal Karim, Judicial review of Public Actions, Second Edition, Vol. 2, p. 804 (internal citations omitted).
18. http://www.amnestyusa.org/our-work/issues/poverty-and-human-rights/maternal-health
19. See: Note 9, ibid.
20. Aharon Barak, Human Dignity: The Constitutional Value and the Constitutional Right, Cambridge University Press
21. His Lordship is now a Judge of the Supreme Court of Pakistan
22. internal citations omitted.
23. Adopted on 14 December 1990
24. Adopted on 23 November 2007
25. See: Note 13, ibid.