Headline of the Article: – Is Menstrual Leave a Right or a Red Flag for Equality in India?
Author: – Divya Khatri, B.A.LL.B., Chaudhary Devi Lal University, Sirsa, Haryana, India.
To The Point: –
Menstrual leave in general terms means the provision granting paid or unpaid leave to menstruating employees so that period-related health issues can be managed, such as fatigue, pain, and related medical conditions such as endometriosis and dysmenorrhea. The concept recognizes that menstruation is a natural biological process that causes considerable discomfort to many women, which impairs their ability to perform their jobs. Talking about the present scenario, there is no legal mandate in India yet for menstrual leave. The constitution and labour law of India does not explicitly talk about providing such leave, but still measures are taken for this in some states. The Government of Bihar has given two days special menstrual leave to female government employees since 1992. Apart from this there is no uniform policy across the country. In recent years, there has been a lot of conversation in the legislative space about menstrual leave. In 2022, a private member’s bill, i.e., In 2022, MP Ninong Ering introduced the Menstruation Benefit Bill in the Lok Sabha. According to this bill, female, transgender employees, students in registered educational institutions will be given three days paid leave every month, whether they are employees of the private sector or the public sector, but this bill has not been made a law yet. Uniform standard is another key concern because menstrual pain varies from person to person and privacy is another issue because for women it may cause embarrassment, social stigma and workplace harassment. Even in the absence of statutory backing, many private organizations have voluntarily implemented menstrual policies like Zomato, Byju’s, Swiggy, Culture Machines, Mathrabhumi are some such companies that have adopted paid menstrual leave for their employees.
Abstract: –
The idea of menstrual leave has initiated an important debate in India. Many people have concluded that there is a great need for a policy that respects women’s health and genuinely acknowledges the pain they experience during their periods. Supporters say that menstrual leave is a decisive step towards fair and humane work conditions, which the Indian Constitution guarantees. This policy will help women to manage their health appropriately and endure being cared for at their workplace. Some critics argue that this will lead to unfair treatment, and they will be considered less capable. Critics argue that this will give birth to new stereotypes instead of removing the old ones. Today, there is no national law in India, although Some companies and states have adopted it but in western countries there is not much focus on it yet. Through this article, we will deeply analyze what ultimately is menstrual leave, present laws and policies, proof, case laws, use of legal jargon, what judges have been given by the courts, whether menstrual leave should be a legal right in India or not or are there better ways than this to ensure health and equality for women.
Use of Legal Jargon: –
In India, the menstrual leave debate must be viewed through the lens of constitutional equality. It touches many important parts of Indian constitutions and labour law. Article 14 guarantees equality before law and equal protection of the laws whereas article 15 prohibits discrimination based on sex. Article 42 tells the state to make sure that workers have safe working circumstances and that mothers are protected by law. Some of the supporters strongly argues that menstrual leave falls under the article forty-two as it ensures humane working conditions whereas some critics argues that this policy is against the doctrine of equality and may lead to unintended discrimination. This article tests the doctrine of substantive equality which means that when it comes to achieving real equality, extra help will be given with equal treatment. When discussed in terms of labour law, menstrual leave opens a new dimension in industrial jurisprudence, and it also raises the question of reasonable classification which allows the state to treat different groups differently if there is a valid reason.
Proof: –
There are no explicit provisions for menstrual leave in India’s labor laws, factories act, maternity benefit act etc., but Article 42 ensures just working conditions, and some states such as Bihar, have also adopted maternity leave policies. A menstruation benefit bill was also tabled, but it was still not passed. The Indian judiciary has not given any direct adjudication but has also stressed ensuring gender justice, dignity in the workplace, and reasonable accommodation in some of the related cases. It was also held in Vishaka vs. State of Rajasthan that workplace safety standards for women must be ensured under every circumstance.
Global practice: –
If we talk about the global level, it has been applied in few Asian countries like in Japan, menstrual leave has been allowed since 1947. Indonesian labour law entitles that female workers should be given menstrual leave for two days every month. Provisions for menstrual leave have also been made in South Korean labour standard. Taiwan and Zambia also have similar policies. There are no specific menstrual policies in western countries and there the focus is more on general sick leave and flexible hours.
Argument in favour of menstrual leave: –
Menstruation is a natural and unavoidable process that causes pain and fatigue for many women and many women also face conditions like dysmenorrhea and endometriosis where there is a strong need for rest.
Providing menstrual leave acknowledges gender specific health needs which promotes humane and just working conditions.
Women-friendly policies improve employee satisfaction and retain talented women workers.
Many countries like Japan, Indonesia, Korea have set a global example by recognizing menstrual leave as an inclusive labour policy.
Argument against menstrual leave: –
Critics argue that it makes women appear less capable than others and hurts gender equality.
Employers will prefer male candidates to avoid productivity losses.
Menstrual leave compromises employee privacy and may cause embarrassment for many women.
Case Laws: –
Air India v. Nargesh mirza (1981)
The Supreme Court has struck downed the service rule, according to which air hostesses used to retire early either due to marriage or pregnancy. The court gave the judgement that this is discriminatory because it is punishing women for natural biological conditions and this case indicates that biological differences can not lead to unfair penalties on women. This idea is directly related to menstrual leave debate.
Vishaka v. State of Rajasthan (1997)
In this landmark decision, the court issued guidelines against sexual harassment at workplace under Article 21 if there is no specific law. This shows how the judiciary uses constitutional rights to fill the gaps and protect the dignity of women so that menstrual health, well work conditions can be extended.
Anuj Garg v. Hotel Association of India (2007)
The Supreme Court struck down a ban on women who worked in bars that served alcohol, which did not reinforce gender stereotypes or limit women’s work opportunities.it ensures that any policy, even if it is meant to protect, must not become a tool for discrimination.
Municipal Corporation of Delhi v. Female Workers {Muster Roll} (2000)
In this case the court held that even daily wage workers are entitled to maternity benefits which reinforced that biological differences should be respected by employers and states. In this case it was upheld that Article 42 gives real support to the health needs of women.
Olga Tellis v. Bombay Municipal Corporation (1985)
This case is not directly about gender, but this case has extended the scope of Article 21 by declaring that the right to life includes the right to liveliness. This shows that the Supreme Court has interpreted Article 21 which broadly includes those conditions which constitute life, and the supporters of menstrual leave argue that menstrual leave should be viewed as a part of broad guarantee.
Conclusion: –
The debate on menstrual leave in India shows how a welfare policy raises tough questions about equality. Supporters of this scheme strongly believe that menstrual leave is a devastating step to respect women’s natural biological needs. This policy protects women’s right to dignity and health, which is an important part of life. Critics argue that if it is not carefully designed, it will lead to unintended discrimination. Employers will begin to see women as an extra cost and will be considered less reliable. Menstrual leave does not just mean taking a few days off, it means finding the right balance between health, dignity and gender equality. In conclusion, the menstrual leave debate in India is not just a matter of employment benefits. It shows how far the law can go to balance biological realities so that gender parity and non-discrimination can be achieved.
FAQ: –
Is menstrual leave a legal right in India?
There is no such central law which mandate menstrual leave but there are some private organizations, government and states that provide it voluntarily.
Does the Indian constitution allow for menstrual leave?
There is no such law in the constitution of India that explicitly mention menstrual leave specifically whereas article forty-two ensure humane condition of work that include gender-specific health necessity.
Does menstrual leave lead to workplace discrimination?
If it is not implemented carefully then it will lead to workplace discrimination and discourage employers from hiring workers.
Are there any countries that make menstrual leave mandatory?
Such mandatory provisions are there in Japan, south Korea, Indonesia, Taiwan etc.
What is menstrual benefit bill, 2022?
This bill proposes three days of compulsory leave every month for women and transgender working in private as well as public sector.
Has the Supreme Court of India given any judgment related to menstrual leave?
Supreme court does not explicitly support menstrual leave and there is no such direct judgement but supreme court in many cases indicate that gender policies that are sensitive in nature aligns with constitutional values.
