Author: Vrinda Bhardwaj, O.P Jindal University
To the Point
In February 2024, the Supreme Court of India decided to entertain a public interest litigation (PIL) seeking a uniform policy for menstrual leave in workplaces and educational institutions. While the petitioner argued for the fundamental rights of menstruating individuals, the Court stated that this was a matter which should be decided by the legislative and policy-making bodies rather than judicial intervention. This development has again started a debate- does menstrual leave depict equality and dignity or does it risk reinforcing stereotypes about women’s capability in the workforce?
The legal discourse surrounding menstrual leave engages constitutional mandates, labour law considerations and international human rights standards. The judgment exemplifies judicial restraint while also highlighting systemic gaps in addressing gender-sensitive workplace policies.
Use of Legal Jargon
The Supreme Court’s refusal to issue a writ of mandamus shows how it follows the doctrine of separation of powers and the limits of judicial review. The petitioner had invoked Article 14 (equality before the law), Article 19(1)(g) (freedom to practice any profession) and Article 21 (right to life and dignity) of the Constitution of India. The contention was that absence of menstrual leave violates these constitutional guarantees by creating substantive inequality for menstruating employees and students.
In dismissing the PIL, the Court effectively applied the doctrine of non-justiciability, holding that socio-economic policy decisions necessitate legislative deliberation rather than judicial agreement. The Court also observed that compelling all employers to grant menstrual leave could have unintended discriminatory consequences which would also lead to people being discouraged from hiring women.
This balancing of constitutional principles and practical considerations shows the nuanced legal interplay between positive discrimination, reasonable classification, and legislative competence under the Seventh Schedule of the Constitution.
The Proof
The debate over menstrual leave is nothing very new in India. A few state governments and private entities already have policies in place. For instance:
Bihar has granted two days of special leave for women employees since 1992.
Private companies like Zomato announced paid menstrual leave policies in 2020.
The Supreme Court’s position has been that a pan-India uniform policy cannot be judicially mandated without an evidentiary foundation demonstrating systemic discrimination or constitutional infirmity. The petitioner failed to present comprehensive statistical or empirical data showing that the lack of a menstrual leave policy results in measurable harm under Article 14 or 21.
Instead, the Court emphasized that such determinations require stakeholder consultation, legislative debate, and economic impact assessments. This reasoning aligns with prior jurisprudence under Article 32, which limits PILs to cases where there is a clear violation of fundamental rights.
Moreover, the Ministry of Women and Child Development and the Ministry of Labour & Employment were already engaged in consultations with stakeholders, which the Court found to be an appropriate forum for policy evolution.
Abstract
This article analyses the Supreme Court’s refusal to judicially enforce a nationwide menstrual leave policy and checking the decision in the broader constitutional framework of India. It involves doctrines of separation of powers, reasonable classification, and positive discrimination and explores whether judicial restraint in this context upholds or undermines substantive gender equality.
While menstrual leave is often celebrated as a progressive welfare measure, there remains legitimate apprehension that it may inadvertently perpetuate patriarchal notions about the fragility of women. This paradox is central to the discourse: Is menstrual leave an emancipatory right or a regressive stereotype?
The article further examines comparative international practices, relevant Indian precedents and the policy implications of legislating menstrual leave.
Case Laws
Vishaka v. State of Rajasthan (1997) 6 SCC 241
This case started because a woman called Bhanwari Devi was attacked and raped at work. She was trying to stop child marriage but there was no law to protect women from harassment at work. The Supreme Court said this was a big gap and created the Vishaka Guidelines. These were rules that all workplaces had to follow to keep women safe. The Court said it could make these rules because women have a right to dignity under the Constitution In the menstrual leave case people wanted the Court to do the same, but the judges said harassment is an urgent problem while menstrual leave is a policy issue that needs more study and discussion in Parliament.
Government of Andhra Pradesh v. P. Laxmi Devi (2008) 4 SCC 720
In this case a woman challenged a law about stamp duty saying it was unfair. The Supreme Court said that when the government makes laws about economic or social issues the courts should not interfere unless there is a clear violation of rights. The judges explained that making policy is the job of lawmakers not judges This idea is called the presumption of constitutionality In the menstrual leave case the Court used this thinking again saying they cannot force the government to make a menstrual leave policy because it is a decision for lawmakers.
Indra Sawhney v. Union of India (1992 Supp (3) SCC 217)
This case is also called the Mandal Commission case The government decided to reserve jobs for certain backward classes to help them get equal opportunities. Some people said this was unfair, the Supreme Court said giving special help to disadvantaged groups is allowed if it aims to bring real equality but the judges also warned that special policies should not create new problems or unfair treatment In the menstrual leave case the Court worried that compulsory menstrual leave could lead to fewer jobs for women or strengthen stereotypes about women being weak.
C.B. Muthamma v. Union of India (1979) 4 SCC 260
The Supreme Court struck down service rules discriminating against women on grounds of marriage, articulating that “an attitude of patronising protection” can be as invidious as overt discrimination.
Air India v. Nargesh Meerza (1981) 4 SCC 335
The Court invalidated discriminatory service conditions imposed on female cabin crew, clarifying that policies must not be premised on assumptions about women’s biological roles.
Collectively, these cases illustrate the Court’s delicate balancing between protective discrimination and the risk of reinforcing gender stereotypes.
Conclusion
The Supreme Court’s decision on menstrual leave shows that the judges chose to step back and let the government and lawmakers handle this issue. They believed that deciding whether to give menstrual leave to all women across India is not something the court should do on its own. Instead, it should be discussed and decided by elected leaders who can look at all the facts, listen to different opinions, and make a proper law if needed. While the demand for menstrual leave is rooted in principles of dignity, health, and equality, the legal pathway to its realization appears to lie not in judicial diktats but in legislative enactment and collective bargaining.
Critics argue that the Court missed an opportunity to advance gender-sensitive jurisprudence. Proponents of the judgment highlight the potential for well-intentioned policies to create unintended negative consequences, such as reinforcing the perception that women are less capable of consistent work participation.
Ultimately, menstrual leave remains a contested terrain—one that demands robust empirical research, inclusive policymaking, and a delicate balance between substantive equality and anti-stereotyping principles.
The Supreme Court has signaled that, while constitutional rights are sacrosanct, the modalities of welfare policy are best debated in Parliament and not dictated by the Bench.
FAQS
Q1: Does the Supreme Court ruling mean that menstrual leave is unconstitutional?
No. The Court did not hold menstrual leave to be unconstitutional. It merely declined to issue a directive mandating a uniform policy across the country, stating this is a matter for the legislature and policy bodies.
Q2: Are there any states in India that provide menstrual leave?
Yes. Bihar has had such a policy since 1992. Certain private companies also provide menstrual leave voluntarily.
Q3: How does the ruling relate to Article 14 (Right to Equality)?
Petitioners argued that not providing menstrual leave violates Article 14. However, the Court held there was insufficient evidence of systemic discrimination necessitating judicial intervention. It also noted that any policy must ensure it does not result in indirect discrimination by discouraging the hiring of women.
Q4: Can Parliament still enact legislation on menstrual leave?
Absolutely. The Supreme Court has expressly indicated that Parliament and State Legislatures are the appropriate forums to frame such policies.
Q5: Does international law require India to implement menstrual leave?
There is no binding international treaty obliging India to legislate menstrual leave. However, obligations under instruments like CEDAW encourage states to ensure gender-sensitive working conditions.
Q6: Could this issue be litigated again in the future?
Yes. If new evidence demonstrates systemic harm or discrimination, or if legislative inaction persists, petitioners could potentially revive the issue before the courts.
Q7: What are the arguments against menstrual leave?
Opponents argue that menstrual leave may reinforce stereotypes that women are less capable or reliable, and could hurt their career prospects. There are also concerns about potential misuse.
Q8: What are the arguments in favour?
Proponents assert that menstrual leave recognizes the biological realities of menstruation and supports women’s health and dignity. They argue that it is a necessary measure to achieve substantive equality.
Q9: Is menstrual leave common in other countries?
Some countries, such as Japan, Indonesia, South Korea, and Zambia, have laws providing for menstrual leave. However, usage rates and cultural attitudes towards such leave vary widely.
Q10: What is the way forward?
The way forward likely involves broader stakeholder consultation, empirical studies assessing the impact of menstrual leave, and legislative action that balances workplace equality with sensitivity to health needs.
