In its latest observation on menstrual leaves, the Supreme Court underscored that mandating menstrual leave for women could potentially result in their exclusion from the workforce and work against their best interests.
The Court also underlined that this issue should not be within the purview of the courts to address.
Hearing a Public Interest Litigation (PIL) that sought directions to the Centre and states to frame policies for menstrual leave, Chief Justice of India DY Chandrachud said, "Mandating such leaves will lead to women being shunned from the workforce. We do not want that what we try to do to protect women can act to their disadvantage."
"This is actually a government policy aspect and not for the courts to look into," the court said.
The apex court mentioned that the matter pertains to various policy elements, and there is no basis for the court to get involved. "We permit the petitioner to move the secretary in the Ministry of Women and Child Development to Additional Solicitor General Aishwarya Bhati. We request the secretary to look into the matter at the policy level, take a decision after consulting all stakeholders, and see if a model policy can be framed," it added.
The court said this ruling would not prevent any state government from taking action in this regard.
However, the matter is more complex than women losing out on employment opportunities if menstrual leaves, in fact, become a practice in the coming months.
Only Bihar and Kerala have implemented menstrual leave policies in India. Bihar allows women employees to take a two-day leave, while Kerala has a provision for a three-day menstrual leave for women students.
In Karnataka, a committee has been formed to assess the possibility of introducing menstrual leave in the private sector throughout the state. The committee recommends providing women with one day of menstrual leave per month.
On December 14, 2023, former Union Minister Smriti Irani sparked a national conversation when she shared her personal opinion on the topic of granting a fixed number of compulsory leaves to female employees. She stated that she believed the "menstrual cycle is not a handicap," leading to a widespread discussion about women's reproductive rights and the health benefits guaranteed to them by the Constitution. Irani argued that providing a fixed number of leaves based on the menstrual cycle could potentially deny equal opportunities to working women, contradicting the goal of promoting inclusivity and increasing the participation of women in the country's workforce.
Fundamental Rights
The basic rights include, among other rights, the right to equality, life, and personal liberty, as well as the right to work and live with dignity. These rights are established in Articles 14, 15, and 21 of the Indian Constitution. The concept of a paid menstrual leave policy originates from these Articles and serves as a proactive measure to ensure that women can fully enjoy these fundamental rights.
Menstruation is a natural bodily process that no one, including menstruating individuals, has any control over. This relates to a broader argument encompassing Article 15(3) of the Indian Constitution, which discusses special provisions for women and children.
The Right of Women to Menstrual Leave and Free Access to Menstrual Products Bill of 2022 (The Bill) fundamentally acknowledges that menstrual leaves are an extension of Article 21. The bill proposes to grant a maximum of three days of paid menstrual leave for menstruating women.
Women’s Health Concerns
The American College of Obstetricians and Gynaecologists states that dysmenorrhea, commonly known as period pain, affects more than half of menstruating women, causing discomfort for one or two days each month. Some women experience such intense pain that they are unable to carry out regular activities for several days.
With the increasing presence of women in our workforce, the question arises: how close is India to enacting a similar law?
Despite the judiciary's active role in protecting the reproductive and sexual rights of women and others in recent years, on February 24, the Supreme Court declined to hear a public interest litigation (PIL) requesting the introduction of menstrual pain leave in the country. The Court stated that since there are policy considerations involved, it is the responsibility of the Central government to implement such a program.
Many women who suffer from menstrual disorders such as endometriosis may find relief in the implementation of menstrual leave policies, which would enable them to take time off from work to manage their menstrual pain.
By introducing menstrual leave policies, workplaces can help reduce the stigma around menstruation and recognise it as a legitimate need for employees. This shift can contribute to a more inclusive and supportive work environment.
Businesses that have implemented menstrual leave policies have reported higher levels of employee satisfaction and increased productivity. Creating an environment that allows for adequate self-care during menstruation is crucial for promoting overall menstrual health.
On February 16, 2023, Spain (preceded by several Asian and African nations) made history by becoming the first European country to approve a law granting working women who suffer from severe menstrual pain the right to take three days of paid menstrual leave, which can be extended to five days.
In 1947, Japan became one of the earliest countries to implement menstrual leave as a labour right. Similar regulations also exist in Taiwan, Indonesia, South Korea, and Zambia.
The arguments for menstrual leave for women outweigh the arguments against it, which are mostly rooted in the negative attitudes of employers against women and concerns for higher productivity against employees’ health. If India plans to increase women's participation in the workforce, it needs policies that favour them and do not work against them.
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