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Synopsis

The Supreme Court has said that breastfeeding is a fundamental aspect of a child's right to life, survival, and optimal development, reaffirming the state's duty to facilitate spaces for mothers in public areas and workplaces.

A bench comprising Justices B V Nagarathna and Satish Chandra Sharma directed States and Union Territories to implement the Union government's advisory in existing public spaces as far as practicable.

"Insofar as the public buildings which are at the stage of planning and construction, it may ensure that sufficient space is reserved for the purposes, in the form of childcare/nursing rooms," the bench said.

It highlighted that the advisory issued by the Central Government in 2024 is in accordance with the fundamental rights enshrined under Articles 14 and 15(3) of the Constitution.

"We therefore, direct respondent no.1/Union of India to incorporate the advisory in the form of a reminder communication to the Chief Secretary/Administrator of all State Governments/ Union Territories along with a copy of this order so that the States/Union Territories would comply with the advisory issued, which would facilitate women, who are nursing infants particularly in public places," the bench ordered.

Maatr Sparsh, an Initiative by Avyaan Foundation, filed a plea before the top court for a direction to the Union government and others to act and construct feeding rooms and child care rooms etc or any other facilities related to infants and mothers at public places.

The petitioner highlighted the importance of early child-care and mother’s milk for a child and submitted that depriving any child of mother’s milk due to lack of basic facilities at public places infringes the fundamental right of a child and the mother. Its counsel further submitted that in today’s scenario, where women are equally participating in the growth of the nation and are stepping outside their homes in large numbers, it is imperative that child-care facilities are available in public places.

The Union government's counsel submitted that on February 27, 2024, the Secretary, Ministry of Women and Child Development, Government of India issued a communication to the Chief Secretary/Administrator of all States/Union Territories, inter alia, in the context of the relief(s) sought for by the petitioner. It also stated that the State Governments/Union Territories would have to comply with the advisory in the form of recommendation issued by the Central Government.

Looking at the importance of breast-feeding for a child and the rights of nursing mothers, the bench said, "It is an integral part of a woman’s reproductive process and is essential for the health and well-being of both mother and the child. Experts recommend that children be exclusively breastfed for the first six months of their life, and from the age of six months, children should commence consuming safe and adequate complementary foods while continuing to be breastfed for up to two years of age or beyond. This view is also supported by Section 5(a) of the National Food Security Act, 2013".

Court pointed out that as the right of a child to be breastfed is inextricably linked with the mother, she also has the right to breastfeed her child.

Consequently, the bench said, "This means that the State has the obligation to ensure adequate facilities and environment to facilitate mothers to breastfeed their children. Such a right and the obligation emanate from Article 21 of the Constitution of India and the foundational principle of ‘the best interest of the child’ as enshrined in international law as well as the Juvenile Justice (Care and Protection of Children) Act, 2015".

Court also referred to Article 39(f) of the Constitution, which requires the State to direct its policy towards the healthy development of children.

"The State also has a duty to raise the level of nutrition and the standard of living of its people," the bench said, referring to Article 47 of the Constitution.

Court also quoted a joint statement of November 17, 2016 by the UN Special Rapporteurs on the Right to Food, Right to Health, the Working Group on Discrimination against Women in law and in practice, and the Committee on the Rights of the Child in support of increased efforts to promote, support and protect breast-feeding.

The court pointed out that it highlighted that breastfeeding helps infants and young children thrive and survive; that it is safe, clean, and contains antibodies which help protect against many illnesses. It noted that, if breastfeeding is increased to near universal levels, it could save more than 8,20,000 lives every year. It raises concern over stigmatisation regarding breast-feeding in public places and at workplaces as it exposed women to unnecessary stress, pressure or intimidation.

Having noted the United Nations Convention on the Rights of the Child, the bench said, "It would not be wrong at this instance to remind the citizens of this nation of their duty to 'renounce practices derogatory to the dignity of women', as enshrined in Article 51A(e) of the Constitution".

The bench pointed out that over and above the duty of the State to facilitate the exercise of the right of nursing mothers to breastfeed their children, the citizens must ensure that the practice of breastfeeding in public places and at workplaces is not stigmatised.

The court opined it was satisfied that a communication had been addressed by the Secretary, Ministry of Women and Child Development, Government of India of February 27, 2024 incorporating, inter alia, the prayers sought for by the petitioner herein.

"We find that the advice for setting up of the facilities at public places is for the purpose of ensuring privacy and comfort of nursing mothers, who have infants, and for the benefit of infants. The communication, if acted upon by the State Governments/Union Territories, would go a long way in facilitating nursing mothers and infants so that their privacy is ensured at the time of feeding the infants," the bench said.

The court asked the Union government to issue further advisories within two weeks to the State Governments or Union Territories to communicate to all the Public Sector Undertakings through the Chief Secretaries or Secretary, Department of Women and Child Welfare, to set apart separate rooms/accommodation for child care/feeding and nursing of infants by mothers.

"If such advisories are issued by the Union of India to the State Governments or Union Territories, we are confident that the same will be construed in the spirit of Articles 14 and 15 (3) of the Constitution of India and in the light of right to privacy of nursing mothers and for welfare of the infants," the bench said.

Case Title: Maatr Sparsh, An Initiative by Avyaan Foundation Vs Union government & Others