Author: Khadijah Khan, a student at School of Law, UPES Dehradun
To the Point:
Menstrual leave is a workplace policy that permits women to take time away from work during their menstrual periods because of physical pain or associated health concerns. While most countries worldwide have adopted legislation or workplace practices to address this biological need, India still lacks a standardized national law on menstrual leave. As women’s participation in the Indian workforce increases and awareness of gender equality grows, the absence of legal and policy provisions for menstruation-related needs highlights a significant gap in Indian labor law. The article examines the status of menstrual leave in India, its implications within constitutional and labor laws, international practices, and advocates for a gender-sensitive and inclusive labor policy.
Use of Legal Jargon
- Gender-sensitive labour policy
- Equality before law (Article 14)
- Reasonable classification
- Positive discrimination (Article 15(3))
- Fundamental Rights
- Directive Principles of State Policy (Article 42)
- Labour jurisprudence
- Public Interest Litigation (PIL)
- Prohibition of discrimination (Article 15)
- Right to life with dignity and health (Article 21)
- Intersectionality in labour rights
- Anti-stereotyping principle
- Principle of equal opportunity
- Constitutional morality
- Substantive equality
- Equal pay for equal work (Article 39(d))
- Expansive interpretation of welfare legislation
- Intelligible differentia
- Nexus with the object sought to be achieved
- Gender justice in employment policies
- Judicial activism
The Proof
Although there is no central law, a few Indian states and private organizations have made initial moves:
Bihar has given two days of menstrual leave every month to female workers in government services since 1992.
Kerala in 2023 adopted menstrual leave for women students pursuing higher education.
Food delivery chain Zomato introduced a policy giving 10 days of yearly menstrual leave to female and trans female employees in 2020.
A Private Member’s Bill known as the Menstruation Benefit Bill, 2017, proposed by MP Ninong Ering, sought to provide women employed in both public and private sectors with two days of paid leave per month for menstruation. The bill did not receive approval.
A PIL in 2023 before the Delhi High Court requested the enforcement of menstrual leave as a right. The Court noted that it is within the realm of the legislature and did not issue binding guidelines.
Abstract
The lack of an India-wide menstrual leave policy is indicative of a profound gender-insensitive legal and labor reform shortcoming. With the heightened profile of women across various professions and increasing acknowledgment of their biological requirements, the legal environment must change in sympathy. This article examines the absence of explicit provisions in Indian labour legislation, compares the problem from a constitutional and comparative law viewpoint, and assesses the extent to which current judicial precedents and international models can guide a national menstrual leave policy. It suggests that the acknowledgement of menstrual leave is not a privilege, but an essential step toward inclusive and equitable employment practices.
Case
- Air India v. Nargesh Meerza (1981)
Issue: Discriminatory conditions of service for air hostesses.
Held: The Supreme Court nullified arbitrary conditions as being in violation of Articles 14 and 16.
Relevance: Refusal of menstrual leave on the basis of gender alone can equally be read into as an arbitrary classification having no nexus with the purpose.
- Vishaka v. State of Rajasthan (1997)
Issue: Sexual harassment in the workplace and lack of legislative protection.
Held: The Court enunciated binding principles under Articles 14, 15, 19, and 21.
Relevance: Where there is no legislative protection of menstrual requirements, courts can follow a similar route to ensure health and dignity in the workplace.
- Olga Tellis v. Bombay Municipal Corporation (1985)
Issue: Eviction of pavement dwellers without alternative accommodation.
Held: The Supreme Court held the right to livelihood to be a part of the right to life under Article 21.
Relevance: In case of menstrual health, denial of leave might taint an individual’s right to health and livelihood.
- Charu Khurana v. Union of India (2015)
Issue: Gender discrimination in granting work permits to women make-up artists.
Held: The Court struck down the restriction as unconstitutional.
Relevance: Gender-sensitive provisions such as menstruation leave can be justified as positive discrimination under Article 15(3).
- Randhir Singh v. Union of India (1982)
Issue: Principle of equal pay for equal work.
Held: The Supreme Court ruled that the principle of equal pay for equal work forms a part of Article 14 and 39(d).
Relevance: Strengthens the notion that equality has to encompass reasonable classification and support for biological differences.
- Municipal Corporation of Delhi v. Female Workers (Muster Roll) (2000)
Issue: Maternity benefits to female casual workers.
Held: The Supreme Court granted maternity benefits to casual workers under the Maternity Benefit Act.
Relevance: Sets judicial precedent for expansive interpretation of welfare schemes for female workers.
- C.B. Muthamma v. Union of India (1979)
Issue: Discrimination against female officer in the Indian Foreign Service.
Held: The Court held that service rules were discriminatory and struck them down.
Relevance: Supports the position that employment policies have to be attuned to gender realities.
- State of Madras v. Champakam Dorairajan (1951)
Issue: Caste-based reservation in schools.
Held: The Supreme Court struck down the classification as being against Article 15.
Relevance: Demonstrates that classifications must be logical and based on clear distinguishing features. In contrast, menstrual leave is considered a justifiable classification.
Current Legal Landscape
Indian labour legislation has failed to develop menstruation-related work entitlements. The major legislation covering labor in India such as:
The Factories Act, 1948
The Maternity Benefit Act, 1961
The Code on Wages, 2019
The Social Security Code, 2020
These concentrate primarily on maternity, childcare, and reproductive health but don’t include protection or benefits related to menstruation. Even the new labour codes don’t cover this lacuna. The Menstruation Benefit Bill, 2017, is pending. It had suggested paid leave for women during menstruation and the creation of restrooms in workplaces, which shows a progressive line of thinking. Yet, due to insufficient political will and widespread social stigmas around menstruation, its passage has been halted.
Lacking a statutory provision, certain private sector companies have promulgated their guidelines, but these efforts are voluntary, unregulated, and non-standardized across industries.
International Practices
Some countries that have made menstrual leave mandatory include:
Japan: Through Article 68 of the Labour Standards Law (1947), women are allowed menstrual leave if they have problematic periods.
South Korea: Grants women a day of unpaid menstrual leave monthly.
Indonesia: Gives two days of menstrual leave during the first two days of the cycle.
Taiwan: Grants three days of menstrual leave annually, which is not deducted from regular sick leave.
Spain (2023): Implemented paid menstrual leave for people experiencing debilitating menstrual pain, the first European nation to do so.
These nations present different models from paid to unpaid leave, but reinforce a global acceptance of menstruation as a valid issue in labour policy. India can modify these models in its socio-economic setup to cater to the specific needs of its workforce.
Why Menstrual Leave Matters
1. Health and Well-being
It affects many people with dysmenorrhea, migraine, fatigue, and nausea during menstruation. For some, the pain is so severe that it debilitates them, and this can further affect their health and reduce productivity.
2. Substantive Equality
Equality under Article 14 does not equate to equal treatment. Reasonable classification and positive discrimination are part of equality. Granting menstrual leave promotes substantive equality by acknowledging physiological differences.
3. Dignity at Work Article 21
It ensures the right to life and dignity. Any policy forcing people to work under duress during menstruation can infringe on their right to dignity and health.
- Breaking the Stigma
Menstruation remains hushed up and tabooed in Indian society. Legal validation can assist in making dialogue normal and providing safe spaces for women and menstruating persons within workplaces.
- Inclusivity at Workspace, Gender-sensitive
Workspaces are more productive and inclusive. Acceptance of menstrual leave increases morale, lowers absenteeism from unchecked health complications, and fosters a favorable working environment.
Challenges and Counterarguments
While the introduction of menstrual leave is viewed as a forward-thinking measure for inclusive labour policy, it is also fraught with some challenges and counterarguments that have to be carefully dealt with:
Reinforcement of Gender Stereotypes: It is claimed by critics that offering menstrual leave could inadvertently reinforce some outmoded gender stereotypes about women being less strong, more emotional, or less competent than men. This will negatively affect long-term gender equality goals for the workplace.
Hiring Discrimination: Employers might find women less dependable or more expensive workers because of added leave benefits, leading to unconscious or obvious discrimination against women during recruitment activities.
Operational Disruption: In terms of business, maintaining the availability of the workforce can become a problem, especially in industries that rely on a few workers or rigid scheduling.
Shortage of Medical Objectivity: Symptoms of menstruation may be quite different for every individual. The subjective nature of menstrual pain can complicate the establishment of objective guidelines for leave, and there may be concerns of abuse or administrative hassle.
Workplace Stigmatization: Ironically, legalizing menstrual leave without widespread cultural sensitization could lead to greater stigma. Women could refrain from taking such leave for fear of ridicule, gossip, or being viewed as unprofessional.
Economic Consequences for the Employer: Particularly for small and medium-sized businesses (SMEs), further paid holidays could be cost-intensive, making them potentially resistive to the measure.
Intersectionality Deficits: Not all women are going to be treated equally. Women working in informal economies, contractual positions, or the gig economy can be left out of such arrangements, and hence, there is unequal access unless the policy is extended to everyone.
Implementation and Monitoring: Without strong frameworks and employee safeguarding, menstrual leave policy implementation can remain superficial, non-mandatory, or uneven.
These are legitimate concerns, but do not invalidate the requirement for menstrual leave and instead highlight the necessity for formulating policies that are adaptable, voluntary, non-stigmatizing, and suitable to India’s heterogeneous socio-economic and workplace realities.
Conclusion
Menstrual leave is not a privilege; it is an acknowledgment of a fundamental biological fact that impacts a considerable proportion of the workforce. It does not go against any of the constitutional assurances of equality (Article 14), non-discrimination (Article 15), health and dignity (Article 21), and labour welfare (Article 42). Without a central legislation, independent efforts by states and corporations are appreciable but inadequate.
India needs to develop a consistent national policy on menstrual leave, aligning the interests of workers with employers’ operational needs. The policy has to be based on respect, choice, and awareness, and not compulsion. It should provide people the right to take leave based on their individual needs and make sure that such leave does not create stigma or result in professional loss.
By adopting menstrual leave as part of its labour and legal policy, India can move towards gender-responsive governance and workplace equity.
Frequently Asked Questions (FAQ)
Q1. Is menstrual leave legal in India?
There is no uniform law requiring menstrual leave. Bihar and Kerala have some limited policies, and some private firms provide menstrual leave optionally.
Q2. Can the refusal of menstrual leave be challenged legally?
It can be challenged under Articles 14, 15, and 21 of the Constitution on the grounds of violation of equality, non-discrimination, and dignity. Judicial intervention can be limited in the absence of a statute.
Q3. Are there any global precedents of menstrual leave policies?
Yes. Japan, South Korea, Indonesia, and Spain have all enacted menstrual leave in some form, either paid or unpaid.
Q4. Will menstrual leave impact women’s employability?
If enacted without sensitisation and protection, it might get abused or misconstrued. But with good sensitisation and policy making, it can break down stigma and empower women at the workplace.
Q5. How can India move forward?
Implementing a central law backed by awareness campaigns, voluntary and anonymous leave provisions, and stringent anti-discrimination policy is imperative. Policymaking needs to be inclusive and guided by medical, social, and legal inputs.
