Date of the judgment: February 24, 2023
Citation: Writ petition (civil) No. 172/2023
Petitioner: Adv. Vishal Tiwari, AOR. Abhigya Kushwaha, Adv. Sunita Yadav, Adv. Shailendra Mani Tripathi, Adv. Rahul Kumar, Adv. Manisha, Adv. Upendra Mani Tripathi, Adv. Aakar Shrivastav, Adv. Abhishek Jaiswal, Adv. Rajvardhan Singh.
Respondent: Union of India and Ors.
Bench: Hon’ble Chief Justice of India DY. Chandrachud, Hon’ble Mr. Justice Pamidighantam Sri Narasimha, Hon’ble Mr. Justice J.B. Pardiwala.
Related Laws: Article 32 of the Constitution, Maternity Benefit Act 1961.
Introduction
Menstruation is the biotic process that happens to females of reproductive age. In this process, the lining of the uterus is shed through the vagina for 5-7 days. This process is a sign of reproductive health in females and is regulated by hormones, due to the expelling of the lining of the uterus muscle, which causes pain. Menstrual pain(dysmenorrhea) is the discomfort or pain that women face during or before menstruation. This pain can be mild to severe and can interfere with the daily activities of the women.
Menstrual break is a kind of break in which women may have the option to take paid or non-paid leave if they are unable to do work due to pain or if they are menstruating. Providing menstrual leave is a very controversial topic, the Supporters of menstrual leave compare menstrual leave with the functions of maternity leave and view it as a medium of gender equality.
A menstrual leave policy was first applied in some sectors of jobs in Post-revolutionary Russia, but due to the increase in discrimination against women, the policy was removed in 1927.
In Kerala, menstrual leave has been granted to every girl studying in the school since 1912
In Indonesia, there are 2 menstrual leave given to every girl every month but there are no additional holidays provided to them.
In South Korea female employees are entitled to take menstrual leave and if they are not taking menstrual leave additional pay will be given to them.
In Europe there is only one country providing menstrual leave is Spain. Since February 2023 Spain has started giving 3-5 days of paid menstrual leave to every girl.
Facts
- Shailendra Mani Tripathi filed a Public Interest Litigation (PIL) petition in the Hon’ble Supreme Court, advocating for the introduction of menstrual pain breaks or period leave for female students and women employees across India.
- The petitioner highlighted the struggles faced by women during menstruation and stressed the need for appropriate measures to address this issue. The plea underscored that menstrual leave is often disregarded by the government and society.
- Several companies, including Zomato, Swiggy, BYJU’s, and Magzter, have recognized the challenges faced by women during menstruation and have started providing paid period leave to their female employees.
- The plea mentioned the introduction of women’s sexual, reproductive, and menstrual rights bills by Shashi Tharoor, which proposed that sanitary pads should be provided for free by government authorities.
- The Menstruation Benefit Bill, 2017, was introduced during the first session of the budget session but was not considered, reflecting the legislature’s reluctance to address menstrual rights.
- The petitioner seeks the Supreme Court’s intervention to bring legislative and policy changes ensuring menstrual leave for female students and employees, promoting gender equality, and acknowledging women’s health needs.
Issues raised
- Whether the question of granting women the right to paid leave during their menstrual period falls under the scope of policymakers; or the legislature?
- Will the Right to paid leave during the menstrual period affect women’s employment badly?
- Should the Concern of offering paid leave to women during their menstrual period be settled in court?
CONTENTIONS
Arguments from the petitioner’s side (Adv. Vishal Tiwari, AOR. Abhigya Kushwaha, Adv. Sunita Yadav, Adv. Shailendra Mani Tripathi, Adv. Rahul Kumar, Adv. Manisha, Adv. Upendra Mani Tripathi, Adv. Aakar Shrivastav, Adv. Abhishek Jaiswal, Adv. Rajvardhan Singh.)
- Concern about offering paid leave to women during the menstrual period has not yet been taken into consideration by legislation
- The introduction of women’s sexual, reproductive, and menstrual rights bills by Shashi Tharoor in which it was stated that sanitary pads would be provided for free by the government authorities. It was also stated that the Menstruation Benefit Bill,2017 was introduced in front of the legislature on the first day of the budget session but it was not taken into consideration saying that this is an ‘unclean’ topic.
- There is a distinction between males and females in many laws and they should be treated equally by paying menstrual leaves.
Argument from Respondent’s side (Union of India and Ors.)
- If menstrual leave is provided to women employers then there will be less
- The ratio of working women will decrease day by day.
- The respondent mentioned that menstrual leave requires the policy.
Rationale
On February 24, 2023, the Supreme Court of India refused to accept the petition by Shailendra Mani Tripathi seeking paid menstrual leave for women all over India. The bench Hon’ble Chief Justice of India DY. Chandrachud, Hon’ble Mr. Justice Pamidighantam Sri Narasimha, Hon’ble Mr. Justice J.B. Pardiwala gave their opinion by stating that by looking to the present matter of paid menstrual leave it needs more governance and policies so that they can be applicable, thus representation must be filed in the ministry of women and child development.
This was said by the benches because since there is a policy dimension in the case the bench suggested the petitioner approach to Ministry of Women and Child Development. After all, if there is a need for laws and policies to be made for paid Menstruation leave then this can only be done by the legislation, The Judiciary doesn’t have any right to make laws and laws and the policies are made by the legislation of the country.
Currently, Indian Law does not mandate any paid or unpaid menstruation leave. But state governments have the opportunity to implement any policies related to the menstrual leave or to provide any leave. If we look forward Bihar government introduced the scheme in 1992 under the scheme (Bihar Vikas Mission) which provides special leaves for women and girls during the menstruation period In the past, as early as 1912, a government school in Kerala offered menstrual leave to its students during annual examinations, allowing them to take the exams at a later date once their periods get over
In recent years, efforts have been made to address this issue at the national level. In 2017, Mr. Ninong Ering, a former Lok Sabha Member of Parliament from Arunachal Pradesh, introduced a private member’s bill in the Lok Sabha advocating for menstrual leave and establishing a grievance redressal mechanism. Although, the bill was not brought forward for discussion. In 2022, a similar bill was tabled during the budget session at a state assembly but was subsequently withdrawn.
As of now, there is currently no formal legal position on menstrual leave in India.
DEFECTS OF LAW
The lack of menstrual leave policies across Indian states represents a violation of Article 14 of the Constitution of India, which guarantees equality before the law. This disparity, driven by federalism and varying state policies, results in unequal treatment of women despite their shared citizenship and similar physiological needs. Women across different states suffer from the same health issues during menstruation, yet their access to menstrual leave differs based on regional policies.
All over the world, many countries have implemented menstrual leave policies, ensuring that women have the right and opportunity to rest and manage menstrual pain in a supportive environment. Such policies promote equal rights and opportunities for women, enabling them to work and study without compromising their health. India must adopt similar measures to ensure that working women and female students can take necessary rest during their menstrual periods, thereby promoting equality and well-being.
Inference
The recent proactive judgment by a three-judge bench of the Supreme Court emphasized the importance of legislative action to establish laws and policies for menstrual leave, ensuring women have the right to rest during their menstrual cycles. Building an inclusive work environment is crucial, as highlighted by recent experiences. Implementing menstrual leave is a significant step towards breaking longstanding stigmas associated with menstruation. It is vital to adapt to evolving workplace practices and incorporate measures that promote the welfare of the workforce.
Even though menstrual leave policies are just beginning to be implemented by organizations and the Indian legal system has yet to address this issue comprehensively, the Government of Bihar has been a pioneer in this area. Organizations should take proactive steps to facilitate a
safe and healthy work environment. This can be achieved by introducing supportive policies, offering necessary benefits, extending support, and sensitizing the workforce as a whole. Encouraging open conversations and providing support to women in the workplace regarding menstruation, without any attached shame, will create a significant shift in workplace dynamics.
In conclusion, the issue of menstrual leave is both sensitive and socially significant. Menstruation is also considered an unclean topic, and there is a need for a fast transformation in societal attitudes to address this concern effectively. By doing so, women can achieve true equality and live in a safe, healthy environment where they can lead their lives to the fullest.