TOPIC- “CRITICAL EXAMINATION OF THE MENSTRUAL LEAVE

POLICY”

Submitted to Submitted by

Dr. Prem Kumar Gautam Madhavi Raje

Assistant Professor B.A LL. B

Dr. Ram Manohar Lohia 19010188

National law University Section A

DECLARATION

I hereby declare that the project work entitled “CRITICAL EXAMINATION OF MENSTRUAL
LEAVE POLICY” submitted to the Dr. Ram Manohar Lohiya National Law University,
Lucknow is a record of an original work done by me under the guidance of Dr. Prem Kumar
Gautam, Assistant Professor, Dr. Ram Manohar Lohiya National Law University and this project
work is submitted in the partial fulfillment of the requirements for the award of the degree of
B.A. LLB. (Hons). The results embodied in this thesis have not been submitted to any other
University or Institute for the award of any degree or diploma.
ACKNOWLEDGEMENT

I express my gratitude and deep regards to my subject teacher Dr. Prem Kumar Gautam for giving
me such a challenging topic and also for her exemplary guidance, monitoring and constant
encouragement throughout the course of this project.

I would also like to thank the librarians of Dr. Madhu Limaye Library who extended their
assistance to me by helping me out in consulting the relevant books and providing me with research
material.

Lastly, I thank almighty, my family and friends for their constant encouragement without which
this assignment would not have been possible.

I know that despite my best efforts some discrepancies might have crept in which I believe my
humble Professor would forgive.

Thanking you all,

MadhaviRaje
Table of Contents

INTRODUCTION .......................................................................................................................... 5

NEED FOR PERIOD LEAVE........................................................................................................ 5

POSITION WORLDWIDE ............................................................................................................ 6

PERIOD LEAVE: STILL A DISTANT DREAM FOR INDIA .................................................... 7

WILL PERIOD LEAVE, IF GRANTED, FALL WITHIN THE FRAMEWORK OF OUR

CONSTITUTION? ......................................................................................................................... 9

CONCLUSION ............................................................................................................................. 10
INTRODUCTION

In the present world, where change is the only constant, workplaces have been evolving in order
to adapt to the contemporary workplace dynamics. It includes creating a professional environment
that embraces diversity, inclusivity, and equity. Over the years we have seen how sensitive issues
like sexual harassment at workplace have been taken up by the organizations 1 and grievance
redressal mechanism for the same have been established2. In order to further the concept of equity
at the workplace, there is a growing demand to have a menstrual leave policy. Menstrual leave refers
to leave granted to menstruating women or transgender.

In 2017 a Bill which had provision for granting menstrual leave was brought in the Parliament, however,
this Bill was rejected for being an “unclean topic”. No significant discussions took place. The Bill has
now sparked the demand for introduction of a policy that enables women to take leave while they
are menstruating.

The demand for menstrual leave not new, it has been raised number of times in India 3. Recently,
in February 2023, the Hon’ble 3 judges’ bench of the Hon’ble SC refused to entertain a PIL seeking
menstrual leave for female students and working women across India. One of the grounds for
refusal was that the grant of menstrual leaves involve a policy dimension and it cannot be interfered
by the judicial machinery. 4 This article shall analyse the debate around menstrual leave policy.

NEED FOR PERIOD LEAVE

To understand the demand of the menstrual leave, it is important to understand the process of
Menstruation itself. In scientific language, it is defined as the shedding of the upper layer of the
uterine lining after the luteal phase of the ovarian cycle. And it is a normal part of the life of a
woman during her fertile years 5. Dysmenorrhea is the name for the pain related to menstruation;
it is cramping pain felt in the lower abdomen which is caused by contractions in the uterus. More

1
Vishaka v. state of Rajasthan AIR, 1997 SC 3011.
2
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
3
Jyothsna Latha Belliappa, Menstrual Leave Debate: Opportunity to Address Inclusivity in Indian Organizations,
53’14 JSTOR, 606, 604-617 (2018).
4
Shailendra Mani Tripathi v. Union of India, Writ Petition SC 172/2023.
5
Am J ObstetGynecol, Menstruation: science and society, 223(5): American Journal of Obstetrics and Gynecology
624–664 (2020).
than half of menstruating women have pain for one to two days each month. Pain is typically
rather minor. But, for other women, the discomfort is so bad that it prevents them from carrying
out their regular activities for a few days each month. Studies have proved that dysmenorrhoea,
which is a menstrual disorder, affects around 80% of menstruating women. It goes without
saying that such kind of pain and discomfort would considerably reduce the productivity of a
person menstruating.

Thus, the primary reason to grant period leave is definitely related to the health of women but the
impact of this decision could be seen on multiple dimensions, the reason for such result lies in
the power of virtue signalling. Such steps which have power of virtue signalling are more
important in countries like India where menstruation is still seen as a taboo and discussion on
and around this topic is still stigmatized as menstruation is considered as impure. Recent
research also indicates that women are more likely to feel sadness during their periods if they
encounter prejudice at work, from acquaintances, or from family members. The fact that many
individuals reject menstruation has a direct bearing on this6. The same is the belief of Marian
Baird, a professor of gender and employment relations at the University of Sydney, who co-
authored a recent paper on global menstrual leave legislation According to Baird by normalising
menstruation and period leave the gender equality can also be advances. 7

POSITION WORLDWIDE
The struggle for Period Leave is not restricted to India. Women in all over the world are fighting
for this basic right. And if we analyse the grant of the period leave in the world, unlike other
progressive steps for which the European and American countries have always been one step
ahead in giving the law and starting a movement, it is Asian countries where the right to leave on
the first two days of menstruation was introduced. In many Asian like Taiwan, South Korea 8 and
some provinces of China this right is well recognised.9

6
Alessandra Biaggi, Susan Conroy, Susan Pawlby, and Carmine M. Parianteb, Identifying the women at risk of
antenatal anxiety and depression: A systematic review, Journal of Affective Disorder, (62-77) 2017.
7
Marian Baird, Elizabeth Hill, Sydney Colussi, Mapping Menstrual Leave Legislation
and Policy Historically and Globally, 32, Comparative Labour Law and Policy Journal (187-225) 2020.
8
Labor Standards Act (Law No. 5309), Art. 68.
9
Gender Equality Act in Employment 2014, Art. 14.
Menstrual leave became a component of labour legislation in Japan in 1947 after the concept
became popular with labour organisations in the 1920s. Now, there is law in Japan that prohibits
employers from asking women who are going through tough situations to work during certain
days of periods but it has been alleged that the law has not been of much use for women as it is
unpaid leave10. Similarly, menstruating employees in Indonesia are not required to report to work
on the first two days of their cycle, according to a 1948 regulation that was revised in 2003.11

Recently, in February, Spain has become the first European Country to provide for the 3 days
paid period leave to Women. Before Spain, Italy was the first European country to formally
accept the Period Leave12. In America, Period Leave is still not a common concept unlike Asian
and European countries where the demand and its recognition is yet to start.

PERIOD LEAVE: STILL A DISTANT DREAM FOR INDIA

In India, the Bihar government has provided two days of menstruation leave each month since
1992. Gozoop and Cultural Machine, two Mumbai-based businesses, became the first private
businesses in India to provide first day of period (FOP) leave in 2017. Zomato will begin
offering its female and transgender workers up to 10 days of menstrual leave annually starting in
2020. Since then, similar restrictions have also been implemented by private businesses like
Swiggy and Byju's.

According to a recent announcement by the Kerala government, menstrual leave will be provided
to female students attending state colleges that fall under the Department of Higher Education. R
Bindu, the higher education minister, expanded the concept to state institutions when the Cochin
Institute of Sciences and Technology (CUSAT) applied it.13

10
Tokyo Weekender, https://www.tokyoweekender.com/japan-life/news-and-opinion/japans-menstrual-leave-is-often-
unpaid-and-unused/ ( Last Accessed Feb 20, 2023).
11
Vrinda Agarwal, Leave to Bleed : A Jurisprudential Study of the Policy of Menstrual Leaves, 8 JILS (2017) 1 SCC
(2017).
12
Anna Momigliano, Italy set to offer ‘Menstrual Leave’ for female workers, <https:
//www.independent.co.uk/news/world/europe/italy-menstrual- leave-reproductive-health-women-employment-
a7649636/> (2017).
13
Live Law, https://www.livelaw.in/news-updates/period-leave-cusat-menstrual-benefits-kerala-minister-r-bindu-
menstrual-leave-all-universities-state-219148 (Last Accessed March 5, 2023).
But if we give attention to these steps that has been taken in India in favour of period leave, we
would realise that these are the orders of either State Governments or private company. There is
no formal legislation or act that gives effect to period leave. It is to be noted that the Menstrual
Benefits Bill 201714 was filed in Parliament in 2017 by Arunachal Pradesh MP Ninong Ering to
give both public and private employees four days of paid menstrual leave each month but the Bill
was not well received in the male dominated legislature and was ultimately dismissed for being
an unclean topic15.

One may ask, what is the solution if the Legislature is not framing law on a subject? The answer
to this question can be judiciary. In support of this solution, one may examine the legislations
that has been framed and enacted in India in recent past. We find that these Acts were not
enacted mere as per the will of the Legislature and suggestions of the different parliamentary
committees. But some of these Acts also had Judiciary as the guiding force.

Though criticised for its encroachment in the work of legislature and not respecting the
separation of power, the Indian judiciary from time to time has given several decisions and asked
the parliament to frame laws on various subjects. The landmark example of the judicial activism
is the Vishakha Judgement. In this case, Hon’ble SC directed the legislature to frame appropriate
laws on the subject of Harassment of Women at the Workplace; in addition to that, the Court also
issued guidelines to be followed till the time law on the subject is not passed. 16

However, in its recent order of the Supreme Court dismissed a PIL filed for the regularisation of
the Period Leave for female students and working women across India. The court cited two
grounds for the dismissal. First reason cited was that if the employers are compelled to give the
menstrual leave, it may disincentivize the employer to employ the female employee. Second
ground for the dismissal was that it is policy matter thus, the Court is not of much help, the right
authority to approach is Women and Child Ministry.17

14
Menstrual Benefits Bill, 2017.
15
Menstrual Leave: An Overview of the Menstrual Benefit Bill, 2017
https://www.khuranaandkhurana.com/2022/06/23/menstrual-leave-an-overview-of-the-menstrual-benefit-bill-2017/
16
Vishaka v. state of Rajasthan AIR 1997 SC 3011.
17
Shailendra Mani Tripathi v. Union of India, Writ Petition SC 172/2023.
WILL PERIOD LEAVE, IF GRANTED, FALL WITHIN THE
FRAMEWORK OF OUR CONSTITUTION?
Art. 16(1) of the Indian Constitution states that there shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any office under the
State18.Equality of opportunity does not only imply the concept in negative connotation, i.e., to
only prohibit the discrimination on various grounds. It also means, to take such actions that
promote the equality. The essence of the same is enshrined under the article 14 of the
Constitution19. Though the preamble is not part of the Constitution, it can be used for the
interpretation purposes20, thus if we look at the Preamble it also states that there should be
equality of opportunity and status in the country 21. But how this equality of opportunity will be
achieved when we will have one standard for two fundamentally different people? There are
plenty of reports come to this finding that during menstruation, women go through physical as
well as mental sufferings. A recent report by Dasra, shows that 23 million girls drop out of
school once they start menstruating 22. This clearly shows that owning to menstruation; women
do not get equal opportunities as men. Furthermore, article 15(3) of the Constitution gives power
to the Legislature to frame special laws for women and children.

This makes it clear that a law, if made, that grants 2 days paid leave to a menstruating person
would only further the concept of equality and would be within our constitutional framework.

Not doing so will be the blatant violation of the Constitution which guarantees the equality of
opportunity and status to everyone in this country. In addition to that it would have the
intersectional impacts in the society, impact of same we see in rural areas in form of school drop
out and low participation of women in the employment.

18
Constitution of India1950, Art. 16(1).
19
Constitution of India 1950, Art 14.
20
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
21
Constitution of India, 1950.
22
Murali Krishnan Indian: Menstruation Taboos Are Forcing Girls Out of School https://www.dw.com/en/india-
menstruation-taboos/a-
63341007#:~:text=Millions%20denied%20proper%20education&text=Another%20report%20by%20the%20NGO,p
ads%20and%20information%20about%20menstruation.
CONCLUSION
From the above discussion it is clear that there is compelling need to enact legislation that
alleviated hardships faced by menstruating person by granting such person 2 days leave. Such
law if enacted would not be discriminatory. To the contrary, it would be within the constitutional
framework and would help create a space which enshrined values of equity and inclusivity.
Those saying that such policy would reduce women employment are not right. Such policy will
have a tendency to improve employer employee relationship the effect of which can be seen in
the quality work undertaken. Moreover, by discussing this topic we can come up with various
suggestions that will ensure that a 2 day leave would not hamper the work assigned to such
menstruating person.

The Bill that was brought in the Parliament was only considering granting leave to menstruating
women, however, given the changing work culture dynamics we should replace menstruating
women with any person who menstruates so as to include those genders who do not identify
themselves as women but they still bleed.

The weak stand of Parliament, by not even considering the Bill properly or by the judiciary for
dismissing the PIL instead of acting upon it like it has done in cases like Vishakha, shows the
lackadaisical attitude of these organs when it comes to issues relating to periods. However, we
are in 21st century and we need to get rid of such mindset. The loopholes in the system need to be
identified and corrected. This will only happen if we have open and free discussions around this
topic.