"I wish that men menstruate": Supreme Court on the judge fired after a spontaneous abortion

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The Supreme Court has taken the Madhya Pradesh High Court to task while hearing a case about woman judges sacked in Madhya Pradesh. While it was alleged that all showed poor performance, one of them was pregnant and suffered a miscarriage in the period in which she was judged. 


"I hope such criteria is also imposed on male judges. I have no hesitation in saying this," remarked Justice BV Nagarathna, pulling up the High Court for its apathy. 


"The lady, she has got pregnant and she had miscarriage. The mental and physical trauma of a lady who has undergone a miscarriage. What is this? I wish men have menstruation. Then they will know what it is," added Justice Nagarathna, who was part of the two-judge bench that heard the matter on Tuesday.


The Supreme Court had taken up the matter on its own in November last year and sought clarification from the high court on the criteria for the termination.


The termination orders for the women judges, who were on probation, were passed in June 2023 by the state law department on the advice of the high court. The performance rating had taken into account the number of cases they had disposed of. 


This August, a full court had a rethink and decided to reinstate four of the judges. But Aditi Kumar Sharma was not on the list.


In a report, the high court said her performance dropped from "very good" and "good" ratings during 2019-20 to "average" and "poor" in the subsequent years.


Pointing out that she was on maternity and child care leave when she had her miscarriage, Ms Sharma, in her note to the High Court, said counting it as part of her performance would be a grave injustice. Also, the termination was a violation of her fundamental right to equality and right to life and personal liberty.


"It is a settled law that maternity and child care leave is a fundamental right of a woman and also the infant, therefore, evaluation of the applicant's performance for the probation period on the basis of the leave taken by her as part of maternity and child care is grossly violative of her fundamental rights," her petition read.


The judge had also argued that she was sacked without following any due process of law despite four years of unblemished service record.