Recently, the Supreme Court refused to interfere with a PIL seeking menstrual pain leave for female students and working women. A Bench headed by Chief Justice DY Chandrachud said, "The plea has been filed under Article 32 and seeks leave for menstrual pain for students and women employees. Having regard to the policy dimension in the case, the petitioner may approach the women and child ministry to file a representation. Petition is disposed of."
The hearing in this case took this sad turn after the court was intrigued by a caveat filed by a law student as the counsel for the student submitted that if this plea was entertained, then she would suffer in all walks of life. To such a submission, the CJI responded by saying, "….. Yes, employers may not want to hire. You have a point." The CJI further said, "This is a policy matter. We did not like the law student to jump into this, but she has a valid point that if such leaves are compelled, then it would de facto operate as a disincentive to engage women as employees," and asked the petitioner to make a representation to the Women and Child Development Ministry.
The plea was filed by Shailendra Mani Tripathi, represented by advocate Vishal Tiwari, urging the court to direct all State Governments to frame regulations for menstrual pain leave. Further, the plea sought effective implementation of Section 14 of the Maternity Benefit Act, which involves the appointment of inspectors to enforce the Act's provisions.
The petitioner based his plea on the edifice of existing precedence in the Indian context like the Meghalaya notification of 2014 for the appointment of officers to enforce the Act and a Bihar case as it is the only State in India that provided special menstrual pain leave as part of a 1992 policy of the Bihar Government.
The petitioner termed the denial of period leave as violative of Article 14 of the Constitution. The plea stated, "This is a violation of Article 14 inasmuch as this Act differentiates women in the name of federalism and state policies. Despite the fact that women suffer from similar physiological and health issues during their menstrual cycles, they are being treated differently in different states of India. However, women, having one citizenship, i.e., of India, must be treated equally and shall be conferred with equal rights; otherwise, it causes a violation of Article 14 of the Constitution of India."
It is not that the petition was without merit or an isolated demand based in India, but in fact countries like the UK, Wales, China, Japan, Taiwan, Indonesia, South Korea, Spain and Zambia already have the menstrual pain leave in place; and although it is not very widespread so far, gradually it is gaining traction in some of the countries.
On February 16, 2023, Spain became the first European country which empowered its workers with the entitlement to have paid menstrual leave as it passed numerous sexual and reproductive rights laws, including ones expanding abortion and transgender rights. Interestingly, the women there can now have the right to three days of menstrual leave a month with the option of extending it to five days in case they experience painful periods.
Before this, in 2015, Zambia introduced menstrual leave where women are allowed to take one-day leave per month. However, in 2016, Sweden became the world’s first country to introduce a paid menstrual leave policy, wherein women who experience severe menstrual cramps or other menstrual-related symptoms are entitled to take paid-period leave.
Apart from this, in 2017, Italy became the first European country to introduce menstrual leave although it wasn’t paid leave. Here, women are allowed to take three days off per month. Besides, in 2019, the Philippines passed a law allowing female workers to take up to two days of menstrual leave a month.
The issue of menstrual leave was advocated by none other than the Supreme Court of India as early as 1992 in the case of SL Bhagwati Vs Union of India and Ors. Here, the court argued in favour of menstrual leave so that women can take care of their health and families.
In 1992, the Bihar Government headed by Lalu Prasad Yadav introduced a policy of two days of paid menstrual leave every month. In March 2021, the Delhi Government announced that it would provide menstrual leave to all its female employees. The leave can be taken on any day of their menstrual cycle and that it would not be deducted from their annual leave entitlement. And in July 2021, the Uttar Pradesh Government announced that its female employees would be entitled to one-day menstrual leave per month.
Although State Governments except Bihar, Delhi, UP and Maharashtra are far from even contemplating such policy, some companies have already implemented menstrual leave policies in India and they include Gozoop, Mathrubhumi, Zomato, Swiggy and Byjus, iVIPANAN.
However, critics say it will reinforce gender stereotypes and could be a ground of discrimination against female employees. Be that as it may, more than the banes, the boons of the policy are more in count. Such a move will give due importance to menstrual health in workplace. Besides, it will promote gender equality by understanding the unique health needs and care for women. Menstrual cycle brings with it heavy bleeding, painful cramping, fatigue, migraine, anxiety and depression which need rest and relaxation for women.
The petition before Supreme Court cited a study by the University College London. According to the study, the amount of pain a female goes through during menstruation is equivalent to the pain experienced during a heart attack. And this makes menstrual leave policy a little step towards respecting motherhood as menstruation is the beginning of it.
(The writer is an Additional Central Government Standing Counsel and a Distinguished Adjunct Professor of Law and Media Studies, KIIT University. Views are personal)
