Author: Chanchal Yadav
College: Babu Banarasi Das University
To the Point
I started researching this topic expecting to find a clear legal answer somewhere — a section, a rule, something a woman could point to if her employer told her to push through a bad cramping day at her desk. There isn’t one. Not at the national level, anyway. What India actually has is a strange mix of goodwill and government silence: a Bihar policy from the early 1990s that nobody outside the state seems to know about, two bills in Parliament that died quiet deaths without even reaching a vote, and a scattering of urban startups that decided, on their own, to offer a day or two off during periods because it looked good in a press release. None of this is law in any real sense. It’s charity dressed up as policy. This piece asks two questions that I think get confused with each other far too often — first, whether the Constitution already contains enough to build an enforceable right on, even without fresh legislation, and second, whether pushing hard for a formal “menstrual leave” category might actually backfire on the women it’s supposed to protect, the same way the 2017 maternity leave expansion seems to have made companies quietly more cautious about hiring women in the first place.
Use of Legal Jargon
Before going further, a quick note on the terms that keep showing up, because half the confusion around this topic comes from people using them loosely:
• Reasonable classification — the Article 14 test that decides when treating two groups differently is actually fine under the Constitution. The differentiation has to be real (an “intelligible differentia”), and it has to connect logically to whatever the rule is trying to do. Not every distinction survives this test.
• Indirect discrimination — this is the sneaky kind. A rule can be written in perfectly neutral language and still land much harder on one group than another in practice. “Everyone gets the same twelve sick days” sounds fair until you notice one group is structurally more likely to need them.
• Statutory right vs. contractual benefit — this is probably the single most important distinction in this whole article. A statutory right exists because a legislature passed a law, and it doesn’t disappear because your boss is having a bad quarter. A contractual benefit exists only because your employer agreed to it in writing, and can be taken away just as easily.
• Justiciability — whether a court can actually do something about a violation. Directive Principles under Part IV of the Constitution are, by Article 37’s own wording, not enforceable in court, even though judges lean on them constantly to interpret rights that are.
• Protective discrimination — Article 15(3)’s carve-out letting the State treat women and children differently in ways that would otherwise look discriminatory, on the theory that it’s correcting an existing imbalance rather than creating one.
• Locus standi — legal standing; whether you’re even allowed to bring the case in the first place.
• PIL — Public Interest Litigation, the Indian courts’ own invention that lets someone petition on behalf of an affected group without needing to show personal injury. This is precisely how the menstrual leave question already made its way to the Delhi High Court once.
The Proof
First, the plain fact: nothing central exists
However much one searches through the statute books, there’s no national law requiring Indian employers to give menstrual leave. Parliament has tried twice and failed both times. Ninong Ering introduced the Menstruation Benefit Bill in 2017; Hibi Eden tried again in 2022 with a version covering both students and working women. Neither got anywhere near becoming law. The single real exception, and it’s a narrow one, is Bihar, which since 1992 has given its own government employees two days of menstrual leave every month — a policy that has somehow survived multiple changes in government without ever being copied elsewhere in the country.
Private companies fill some of the gap, but only where they feel like it. Zomato’s 2020 period leave announcement got plenty of coverage; Byju’s and Swiggy followed with their own versions. The trouble is that all of it rests entirely on the employer’s willingness to keep the policy in place. Nothing legally stops a company from quietly dropping it next financial year, and an employee in that situation has almost no recourse — maybe a breach-of-contract argument if the benefit had actually been written into her appointment letter, but that’s about the limit of it.
So does the Constitution actually help at all?
Not directly, no — there’s no clause anywhere that says “menstruating employees are entitled to leave.” But Indian constitutional interpretation has never really stayed glued to literal text, and there’s a genuine argument to be assembled from what’s already there.
Take Article 14 first. It allows the law to treat different groups differently, as long as the difference is real and connects to a legitimate purpose — which a documented physiological experience like menstrual pain arguably satisfies, so long as the resulting policy doesn’t slide into blanket assumptions about women’s general capability. Then there’s Article 15(3), which goes out of its way to let the State make special provisions for women, and which is exactly what has historically justified protective laws like the Maternity Benefit Act. Article 21 has been read, over the decades, to cover not just survival but dignity and health, including at the workplace — and forcing someone to sit through genuinely disabling pain with zero accommodation sits awkwardly against that backdrop. And Article 42, while technically just a Directive Principle and not directly enforceable on its own, has repeatedly shaped how courts read other, enforceable rights — which is more or less how the Maternity Benefit Act found its constitutional footing to begin with.
Put together, none of this hands anyone an automatic entitlement. What it does offer is enough raw material that a well-argued case, or a legislature that actually wanted to act, wouldn’t be starting from nothing.
The part that’s genuinely hard to sit with
This is where I found myself going back and forth the most while writing this.
The case in favour of menstrual leave feels almost obvious on its face: without it, women end up spending casual leave or sick leave on something their colleagues never have to think about, or they just grit their teeth through a day that would earn anyone else sympathy and a couch to lie on. Framed that way, offering nothing at all starts to look like a subtler, harder-to-pin-down form of discrimination — the kind where the rule reads neutral but the weight of it isn’t shared equally.
But there’s a counter-argument that deserves to be taken seriously rather than dismissed, and it comes largely from women themselves — several feminist legal scholars and women’s rights groups have flagged this exact worry. Formalising menstrual leave as a category risks quietly confirming the very stereotype it’s trying to fight — that women are somehow less consistent, harder to rely on, more expensive to employ. This isn’t just theoretical. After the Maternity Benefit Amendment stretched paid leave to 26 weeks in 2017, a number of industry surveys found employers had grown noticeably more reluctant to hire women who might soon need that leave. There’s no strong reason to think a menstrual leave policy, framed carelessly, wouldn’t produce a similar quiet chilling effect — one that never shows up in any rulebook but shapes who gets called back for a second interview.
What this really comes down to is design, not intention. A policy that leans hard on the word “menstruation” invites exactly this stereotyping risk. A policy built around something more neutral — a certified medical condition, or a general flexible-leave category open to any employee — might land in roughly the same place practically, while dodging the trap almost entirely.
Looking beyond India for a moment
Very few countries have actually legislated this. Japan has had some version of menstrual leave on the books since 1947, letting women take leave when their period makes work “conspicuously difficult” — one of the oldest such laws anywhere in the world. South Korea, Indonesia, Zambia and Taiwan all have their own variations. The one that struck me as genuinely well thought through is Spain’s, passed in 2023, making it the first EU country to introduce state-subsidised menstrual leave. Crucially, it isn’t triggered by menstruation itself but by a doctor’s certificate confirming incapacitating pain. That’s not a small detail — it shifts the whole justification from “women deserve special treatment” to “anyone with a documented condition deserves accommodation,” which is a far easier position to defend once equality law gets involved, and probably the closest thing to a workable template India could borrow from.
What can actually be done right now, without waiting for Parliament
Until a central law shows up, contract law is really the only door that’s genuinely open. If menstrual leave gets written into an offer letter, folded into a certified standing order under the Industrial Employment (Standing Orders) Act, 1946, or built formally into an HR policy that’s been made part of the terms of employment, then refusing it becomes something an employee can actually take to a Labour Court or Industrial Tribunal. And where the employer counts as “State” under Article 12, there’s a further avenue — a writ petition under Article 226, arguing that withdrawing a benefit already extended to comparable employees is simply arbitrary and therefore falls foul of Article 14. None of this is a clean guarantee, but it’s a real foothold, which is more than most working women currently have.
Abstract
This article examines the legal status of menstrual leave in India, a country with no central statute on the subject despite two failed legislative attempts, one long-standing state-level policy in Bihar, and a small number of voluntary private-sector schemes. It asks whether Articles 14, 15, 21 and 42 of the Constitution, read together, can supply enough interpretive ground to argue for an enforceable right even in the absence of fresh legislation, and separately traces the narrower but real routes currently available through employment contracts, certified standing orders, and writ petitions against State employers. The article then turns to a tension that receives less attention than it deserves: the possibility that formalising menstrual leave, if designed around sex rather than medical condition, could reinforce the very workplace stereotypes it is meant to dismantle — a risk with real precedent in the hiring caution that followed the 2017 Maternity Benefit Amendment. Drawing on comparative examples from Japan, South Korea, and particularly Spain’s 2023 law, which conditions the benefit on a medically certified condition rather than menstruation as a category, the article argues that India’s more defensible and durable path forward is a neutrally framed, health-based leave rather than one built explicitly around gender.
Case Laws
1. Air India v. Nergesh Meerza (1981) 4 SCC 335 — The Supreme Court struck down airline service rules that ended an air hostess’s employment upon her first pregnancy, holding the regulation manifestly arbitrary and in breach of Article 14. It has nothing directly to do with menstrual leave, but it’s essential reading for this argument because it establishes that employment conditions tied to a woman’s reproductive biology attract close constitutional scrutiny and can’t simply be waved through as reasonable classification.
2. Municipal Corporation of Delhi v. Female Workers (Muster Roll), (2000) 3 SCC 224 — The Court held that maternity benefits under the 1961 Act had to reach even daily-wage, muster-roll employees of the Delhi Municipal Corporation, reading Article 42 straight into a statutory entitlement. The case is cited often for the broader idea that reproductive-health benefits shouldn’t stop at the edge of formal, permanent employment — which matters enormously here, given how much of India’s female workforce sits well outside that formal boundary.
3. Randhir Singh v. Union of India, (1982) 1 SCC 618 — Nominally about equal pay for equal work, its real value lies in the Court’s method: reading Article 39(d), a Directive Principle with no independent enforceability, together with Articles 14 and 16 to build something genuinely actionable. It’s essentially the same move any future menstrual leave argument would need to make with Article 42.
4. Vishaka v. State of Rajasthan, (1997) 6 SCC 241 — Decided in the context of sexual harassment, this case matters here for its approach rather than its subject matter: faced with total legislative silence, the Court reached for CEDAW and read it into Articles 14, 19 and 21 to fill the gap until Parliament caught up. It remains the strongest available template for how a constitutional court might, in theory, do something similar for menstrual leave.
5. Delhi High Court PIL (2023), filed by advocate Shailendra Mani Tripathi — This petition asked the Court to direct the central government to frame a uniform national menstrual leave policy. The Court declined, holding it was a matter squarely for the legislature and executive. If anything, the refusal is more useful than a favourable order would have been, since it marks exactly where judicial willingness currently runs out — and why the real work has to happen in Parliament, not the courtroom.
6. The 2017 Maternity Benefit Amendment, and what followed — Not a court case, but an episode that keeps resurfacing in this literature for good reason. After paid maternity leave was extended to 26 weeks, several industry bodies and hiring surveys reported employers becoming visibly more cautious about hiring women of childbearing age. It stands as the clearest available evidence that even a well-meant, sex-specific benefit can create an informal cost that never appears in any statute — precisely the risk any future menstrual leave law would need to be built to avoid.
Conclusion
After going through all of this, I don’t think the honest answer is a clean yes or no. The constitutional material is genuinely there — Articles 14, 15(3), 21 and 42 give both a litigant and a willing legislature more than enough to build on, and cases like Vishaka and the Municipal Corporation of Delhi judgment show Indian courts have stepped into exactly this kind of legislative gap before. But the 2023 Delhi High Court PIL is a useful reminder that courts aren’t going to conjure this right up on their own initiative. That responsibility sits with Parliament, and Parliament simply hasn’t picked it up.
The tougher question isn’t whether such a law could exist — it’s whether, built carelessly, it would end up doing more harm than good. A policy centred narrowly on the word “menstruation” risks reviving the same stereotyping that the Supreme Court rejected in Nergesh Meerza, and risks the same quiet hiring hesitation that followed the 2017 Maternity Benefit Amendment. Spain’s approach, tying the leave to a certified medical condition rather than to menstruation as a category, looks like the sturdier model, because it reframes the entire conversation away from “women need special treatment” toward “anyone with a documented health condition is entitled to accommodation.”
Getting this right in India would probably take three things moving together: a revived central bill, drafted more carefully than the ones that lapsed, anchored in certified medical need rather than sex alone so it can actually survive an equality challenge; more states following Bihar’s example, since state-level rules move faster and can double as real testing grounds; and, in the meantime, employers and unions actually using the tools already sitting on the shelf — standing orders, HR policies written into appointment letters, collective bargaining — to make some version of this enforceable today rather than waiting on Parliament indefinitely. Until one or more of those things happens, menstrual leave in India stays exactly what it is right now: something you hope your employer is decent enough to offer, not something the law says is yours.
