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Sunday, July 03 2022

While framing policy on transfers, try to protect family life, says SC - 3 min read

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New Delhi: The Supreme Court on Thursday March 10 said the state, while formulating a policy for its own employees, has to give due consideration to the importance of protecting family life.

A bench of Justices D.Y. Chandrachud and Vikram Nath said: “How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the state.”

Justice Chandrachud, who authored the judgment on behalf of the bench, said in crafting its policy, the state cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21.

“The state while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy,” he added.

The bench said that an employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice. It noted that policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station, are subject to the requirement of the administration.

The top court’s stance came as it upheld the Kerala High Court judgment, which said that withdrawal of a circular by the Central Board of Excise and Customs on Inter-Commissionerate Transfers is not invalid, as it will violate the unique identity of each cadre.

“Hence, while we uphold the judgment of the division bench of the Kerala High Court, we leave it open to the respondents (Union of India and others) to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds,” said Justice Chandrachud.

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The bench added that the policy, above all, has to fulfil the test of legitimacy, suitability, necessity and of balancing the values which underlie a decision-making process informed by constitutional values.

“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. The appeals shall be disposed of in the above terms,” added the bench.

Citing gender discrimination at workplace, the bench said 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,” it added.

The bench emphasised that measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace.

“The impact of gender in producing unequal outcomes continues to operate beyond the point of access,” said Justice Chandrachud.

The bench said that this court, in the exercise of judicial review, cannot direct the executive to frame a particular policy, yet the legitimacy of a policy can be assessed on the touchstone of constitutional parameters.

“Moreover, short of testing the validity of a policy on constitutional parameters, judicial review can certainly extend to requiring the State to take into consideration constitutional values when it frames policies,” it added.

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