Abstract –
Menstrual leave policies let women take time off work when they have period pain or discomfort that makes it hard to work. More than half of the women who menstruate experience pain for a couple of days a month. In January 2023, a Public Interest Litigation (PIL) was filed before the Supreme Court of India seeking that a direction be issued to all states to frame a policy for menstruation pain leave for female students and working women. On February 24, the Supreme Court refused to entertain this Public Interest Litigation (PIL) stating that it would be appropriate to approach the Ministry of Women & Child Development.
While there is no law governing menstrual leave in India, states or organizations are free to provide menstrual leave to the women working under them. Some that offer menstrual leave in India for their employees are Zomato, Byju’s, Swiggy, etc. The writer has gone through a variety of extant literature, including various articles, case laws, surveys, and newsworthy instances to justify the claim and reach the conclusion. Ultimately, a conclusion has been put forth by the writer including some suggestions that could improve the legislation.
Keywords-
Menstrual leave, Public Interest Litigation (PIL), Women’s rights, Gender discrimination, Supreme Court.
Introduction-
Menstrual leave allows people to take paid or unpaid time off work if they are on their period and feeling unwell.having symptoms of menstruation which include:-
- Nausea
- Vomiting
- Heachache
- Dizziness &
- Tiredness
Menstrual leave is a debated policy topic in which everyone has different opinions. Some people argue that providing menstrual leave will positively affect the efficiency, productivity, and health conditions of women during employment while some people argue that providing menstrual leave will lead to gender discrimination and have a negative effect on the organization. Some people are also of the view that some women will take advantage of this policy which will negatively impact the organization or company under which they are employed. This shows that some are in favor of menstrual leave whereas some are against it including women who menstruate.
In India, various measures have been taken to implement a national menstrual leave but they all went in vain some states tried to implement menstrual leave policies for female employees working in connection with organizations under the state government. In 1992, Bihar became the first state to introduce menstrual leave of two days per month. Aside from the State, a government school in Kerala in 1912 provided menstrual leave to its students. Also in 2017, a Bill was introduced before the Parliament of India to provide 4 days of paid menstruation leave per month to women employees in any establishment registered with the Government but was not discussed. However, again the bill was passed during the Budget session in the Legislative Assembly of Arunachal Pradesh but was withdrawn thereafter.
Recently, in January 2023, a PIL was filed before SC to frame a policy for menstrual leave for female students and working women under the provisions of the Maternity Benefit Act, of 1961. However, the PIL was disposed of by SC of India, suggesting that it is a matter that would be appropriate if the petitioner submits a representation to the Union Ministry of Women and Child Development. Reacting to this, Smriti Irani, the Minister for Women and Child Development opposed this menstrual leave policy fearing denial of equal opportunities.
Many employers would allude to Aristotle’s idea that ‘ equality consists in the same treatment of similar persons’ which means individuals should be treated the same unless they differ in way
that fit their situation. Girls from 12-40 or 50 years menstruate every month. Men don’t. So, the policies should be made in favor of women who suffer every month.
Many countries have already offered menstrual leave such as Japan, South Korea, Taiwan, Indonesia, Spain, Zambia, and Vietnam. Meanwhile, India is facing problems in implementing this policy because menstruation is still considered a taboo topic and there is opposition from many.
This paper critically examines the Supreme Court’s decision regarding menstrual leave.
Research Methodology:
This paper is based on Secondary sources for the deep analysis of the Supreme Court’s decision regarding menstrual leave. Secondary sources of information include newspapers, journals, and websites used for the research. Also, research has been done from some surveys that were conducted.
Review of Literature:
“The Palgarave Handbook of Critical Menstruation Studies, 2020” by Rachel B Levitt, and Jessica L Barnack-Tavlaris – This article discuss about the menstrual stigma which socially conditions menstruators to conceal menstruation and avoid discussion about it. In this article, it is said that both concealment and secrecy can have detrimental consequences for a menstruator’s psychological well-being, such as holding negative attitudes toward menstruation and partaking in self-objection. The oppressive beliefs about and attitudes toward menstruation can extend beyond menstruators’ psychological health; they may negatively affect their overall well-being including their personal and professional achievements and success, physical health, and the right to feel empowered and experience equality.
“Indian Justice Integrated Research of 2023” by Bhargabi Kundu – With the growth of India, more women are entering into jobs and are making a significant contribution to the economy and companies. Governments and organizations should make sure that their basic needs are fulfilled, but they are relatively insensitive towards the monthly pain, cramps, and heavy bleeding the women face. During the menstrual cycle, they must rest for at least the first 3 days, but no initiative has been undertaken. It has been in debate for years and recently came again to the surface due to the PIL filed before the Supreme Court. The author tries to unfold the questions on the need for menstrual leave and various legal provisions related to it.
The Case of Menstrual Leave in India:
In January 2023, a PIL was filed seeking menstrual leave for working women and students. The Petitioner mentioned a study by Professor John Guillebaud at University College London which revealed that “period cramps can be almost as severe as having a heart attack” and it leads to adverse effects on women’s physical and emotional well-being. As a result, there is a negative impact on productivity and job performance for working women. The Petition further states that this differentiation violates Article 14 as women are being treated differently in different states.
The PIL also highlighted that countries such as the UK, Wales, Japan, Taiwan, Indonesia, South Korea, Spain, and Zambia have already recognized the importance of menstrual pain leave and have implemented policies to provide it in one form or another.
This PIL also seeks the attention of some Bills to provide menstruation leave and they are-
• The Women’s Sexual Reproductive and Menstrual Rights Bill &
• The Menstruation Benefits Bill of 2017
This petition was filed by Shailendra Mani Tripath filed this petition and this petition was represented by advocate Vishal Tiwari, asking states to make rules for giving menstrual pain leave to students and women workers in workplaces. The Bench, including Chief Justice of India D.Y. Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala, prompted the applicant to look for another approach which is the Union Ministry of Women and Child Development Ministry to frame this policy.
When the judges had decided to send out the notice, a law student, represented by advocate Satya Mitra, mentioned that making period leave mandatory could make it harder for women to get jobs in the private sector as employers could perceive a large female workforce to be a disincentive for business and trade. The CJI led bench said that she (law student) has a point. If you compel employers to provide paid menstrual leave to women employees, it may impact their business and they might avoid taking in a large number of women employees.” The bench however said “We feel it is an issue for the Executive’s policy decision” asking the petitioner’s counsel Vishal Tiwari to submit a representation in this regard for necessary action to the Union Ministry of Women and Child Development.
Why may the Supreme Court have refused to hear the PIL for menstrual leave policy?
The Supreme Court may have relied on several sources debating upon the menstrual leave policy. Mainly, the Supreme Court might have considered the Separation of Power doctrine, according to which the Judiciary cannot interfere in matters that are related to Legislature and Executive. That is why the Supreme Court might have asked the Petitioner to take this matter to the Union Ministry of Women and Child Development.
Furthermore, the Court may have refused seeking the principles of gender-based discrimination and promoting women rights. Some females are of the view that if period leave is given to women then they might face discrimination and be treated very differently in their workplaces. So, after understanding the complexities of menstrual leave the court might have refused to take any decision in this matter.
Understanding the condition of women during menstruation:
Now, let’s talk about why we need menstrual leave. A survey of Indian female students in the Global Journal of Health Sciences in 2015 reported that 70.2% had dysmenorrheal and dysmenorrheal means period cramps and pain in the lower abdomen or pelvis. Women who experienced mild pain on average absented for one-and-a-half days a month while the average was 2.1+-1.2 and 2.5+-1.3 days for those who experienced moderate and severe forms of dysmenorrheal respectively. About 23% of dysmenorrheal women experienced paid for 2-3 days and the rest for 1 to 1.5 days.
A survey was conducted by a feminine hygiene brand, Everteen, and it has released their findings of Menstrual Hygiene Survey, 2023 on 28th May. Nearly 1000 menstruating women participated from the age group of 18 to 35 years from Delhi, Mumbai, Bangalore, Hyderabad, Kolkata, Chennai, Pune, Ahmedabad, Lucknow, Patna and other Indian cities. This survey found that 73% of women want the provision of period leaves. In short, all the women in urban areas want to rest it on days when the period pain gets to them.
According to the Chartered Institute of Personnel and Development (CIPD), a professional body for human resource managers, “two-thirds of women experience a negative impact at work due to symptoms of menstruation” This means that when people are uncomfortable during their periods, they can’t work as well, which causes a big drop in productivity.
After looking at these surveys, we can say that the women facing problems during periods are high and they are made fun of for being weak at that time. In India, menstruation is considered a taboo. There are many sources that say that menstruating women should not pray cook and touch anything holy. That is why most rural women try to not talk about menstruation and their pain whereas the women in urban areas are more open about it and they cook and work during their menstruation.
Menstrual leave policies in various countries:
Japan: In Japan, menstrual leave has been given since 1947 to address labor rights concerns. After Japan’s defeat in World War II, the country gave period leave in its new labor laws as a right for all female employees who faced difficulty during periods.
South Korea: South Korea introduced a menstrual leave policy in 2001, This policy grants one day of unpaid leave to female employees per month. People who refuse to take these leaves could be fined up to a maximum of 5 million won.
Indonesia: Indonesia has granted menstrual leave to women for two days per month since 2003. Employers often exercise discretion like providing one day leave or no leave at all. This leads to inconsistency in enforcing this legal decision.
Taiwan: In 2013, Taiwan made a law that lets female workers have three days off with pay for their periods each year. In addition to the regular 30 days of sick leave, these menstrual leaves are given. 50% of the salary is paid on menstrual leave, just as on sick leaves.
Zambia: Zambia has provided female employees with one day of menstrual leave per month since 2015. One can take this leave without telling anyone or giving a note from the doctor.
Philippines: In 2019, the Philippines made a law giving female employees two days off with pay every month for their period.
Spain: Spain became the first European country to pass such legislation that offers paid leave for period pain. The law, without a specified timeframe for leaves, mandates a doctor’s note and aims to end the practice of women concealing menstrual pain at work.
Vietnam: In Vietnam, women workers can take three days off each month during their period. They also get a 30-minute break each day during their period. Women who decide not to take menstrual leave get extra payment.
Pros and Cons of Menstrual Leave:
Menstrual leave policies may vary in terms of conditions and benefits, and some of these policies have sparked debate. An example would be Spain’s requirement for a doctor’s note is considered controversial. Vietnam’s policy is also debated because it provides financial incentives for female employees not to take menstrual leave. There are some pros and some cons of menstrual leave which the writer is going to critically analyze.
Pros or Benefits of Menstrual Leave-
1. Increase in Productivity: Giving female employees when they are menstruating can increase their productivity when they are working after getting rest. It will positively affect the employers too because the women will be completing their given tasks efficiently. In a nationwide survey in 2017 that was conducted by Radboud University Medical Centre in the Netherlands of 32,748 women showed that 80.7% reported productivity loss
2. Reduce Absenteeism: Giving female employees leave during their menstruation will not amount to women getting absent during their work. When the women are in pain, then they may be absent from their work and it will cause disturbance in the organization. In a nationwide survey in 2017 that was conducted by Radboud University Medical Centre in the Netherlands of 32,748, women showed that 13.8% reported workplace absenteeism due to menstrual- related problems. A survey in Australia of 125,000+ participants by Share the Dignity found that 40% of respondents had missed work due to menstruation and 6% took leave every month.
3. Health and well-being: Menstrual leave promotes the health and well-being of female employees because it recognizes the physical and emotional harm that menstruation can cause. The health of employees is more necessary for the working organization. When the employees are healthy then the working of the organization is on its line.
4. Reduces stress and Depression: Women who suffer from pain during periods tend to go into Depression and take stress. They have a massive workload which becomes impossible to complete while being on periods. Therefore, giving menstrual leave to female employers can reduce their stress.
5. Increased Loyalty: When there is a commitment from employers to give menstrual leave to female employees then this leads to the commitment of female employees to the organization which can increase loyalty and job satisfaction.
6. Equality and Equity: As it is mentioned earlier, women get periods, not men. So, women suffer more than men, and providing menstrual leave can get them equality by addressing the needs of female employees who menstruate, ensuring they have equal opportunities and support from employers. Irene Montero, the Minister of Equality in Spain commented on the passing of the menstrual leave bill that, “without these rights, women are not full citizens”
7. Recruitment: Providing menstrual leave can increase their workers and attract new talent in organizations which can enhance the reputation of the organization.
8. Psychological comfort: In most countries, individuals claim that they are unwell and use sick leave each month during menstruation but providing a menstrual leave policy may give psychological comfort and ensure that female employees are not punished for taking leave when they are in pain.
We have seen some positive benefits of menstrual leave now let’s come to the drawbacks of the menstrual leave policy
Cons or drawbacks of menstrual leave policy:
1. Challenges in Operation: When female employees take menstrual leave then it may pose some problems in working on tasks or challenges because some tasks might have tight deadlines.
2. Inequality among employees: Some may argue that providing menstrual leave can raise concerns about inequality among employees and other employees might become against this menstrual leave policy.
3. Discrimination: Some employees who do not menstruate, such as transgender, men or postmenopausal women can feel discriminated against when menstrual leave is provided to female employers and it could lead to bitterness in their work and loss of productivity.
3. Workload Imbalance: In some organizations, there are limited staffs so providing menstrual leave to female employees can lead to a heavy workload upon those who are present and it can cause energy burnout and resentment.
4. Misuse or Abuse: Some female employees who do not suffer from pain or discomfort during periods can take leave by claiming menstrual-related symptoms falsely or use it as additional paid time off.
5. Normalization of Absenteeism: Providing menstrual leave may cause increased absenteeism for menstrual-related issues and it can lead to being absent for minor inconvenience.
6. Conflicts or Tension among male, female, and transgender employees: Some employees may feel outraged and resent the ones who take menstrual leave because it increases the workload of the employees who are present and creates tension among them.
7. Menstruation as weakness: For some employees menstrual leave might be considered as a weakness or sickness. Some may think that the people who menstruate are inferior and must be treated as sick.
8. Menstruation as Anti-feminist: Barkha Dutt wrote in her recent Washington Post opinion piece, “I’m a feminist. Giving women a day off for their period is a stupid idea”. Providing menstrual leave may create barriers for women in the workplace.
9. Menstrual Leave Policies are Ineffective: In 2021, a nationwide survey in Japan was conducted by the Nikkei Intelligence Group of almost 2,000 women who had been offered menstrual leave. The survey found that less than 10% of respondents had ever taken menstrual leave and 57% of them wanted to but didn’t take the leave. Similarly, in South Korea, CNN reports that there is a drop in female employees taking menstrual leave from 23.6% in 2013 to 19.7% in 2017. Similarly, in Vietnam, female employees who do not take menstrual leave get financial rewards.
Conclusion and Suggestion
After taking a closer look at Supreme Court’s decision, it can be said that the decision of Supreme Court to regard this matter to Union Ministry of Women and Child Development was fair. The menstrual leave policy is a big decision and has big effects on many employees so this matter should be taken care by the Legislature of India.
Smriti Irani, the Minister for Women and Child Development opposed this menstrual leave policy fearing denial of “equal opportunities just because somebody who does not menstruate has a particular view towards menstruation” but maybe her choice of words weren’t right but if we see the harsh reality then we all know that unfortunately women are already not treated equal in the corporate sector because of the assumptions made by the society for her. So, how can we expect that after period leaves, women will be preferred and would get the spotlight and shine or even show their capabilities? But, the women who can’t even stand during their periods will need this menstrual leave policy. Apparently, health-conditions matter the most.
The Supreme Court when denied this hearing they were of the same view as Smriti Irani and it totally depends on Supreme Court that which cases it wants to hear and it is important for its independence. If a Court is refusing from hearing a case then it should explain clearly that why it is refusing to hear any case or PILs so everyone can understand and trust the decision taken by Court.
I suggest that there should be a proper discussion on menstrual leave policy in Parliament of India and they should pass the bill on this policy. The women who are not suffering from pain and discomfort during periods are free to not take leave but the women who are suffering will need this policy because the majority of women are suffering from pain and discomfort during periods.
Divyanshi Singh
Allahabad University