By Lauren Prem
The long-standing debate regarding menstrual leave policy (hereinafter referred to as ‘the policy’) has erupted once again since the Supreme Court dismissed a petition seeking menstrual leave, on 8th July 2024. A three-judge bench consisting of CJI DY Chandrachud and Justices J.B. Pardiwala and Manoj Mishra stated that the court cannot take up policy matters that fall clearly within the executive’s domain and in turn, directed the government to frame a policy for the same. A concern flagged by CJI DY Chandrachud while dismissing the petition revolves around gender representation as it is feared that recruiters will have lesser preferences for women due to the ‘paid leave’ factor.
While gender representation is largely viewed as a social issue, legal experts have contributed to this debate by voicing out their concerns regarding legislating on menstrual leave to ensure strict implementation.
Legal luminaries believe that biological differences must be taken into account in order to ensure inclusivity in the work place. In other words, women should not be held back from success due to something beyond their control. In addition to the argument concerning equality, it is widely acknowledged that health is an important part of performance and productivity and that the policy will ensure a healthier women workforce. As Supreme Court advocate Karuna Nundy shares ‘productivity is much better when people are feeling well.’
The concern flagged by Justice DY Chandrachud lies at the heart of this ‘menstrual leave policy’ debate. The concern holds a presumption that a line of reasoning based on inclusivity would prove to be counterproductive as recruiters will be keen on selecting those who can offer higher productive hours. Further, studies show lesser female participation in workforce due to maternity leave and it is feared that the same would be the case with this policy also. Some lawyers also believe that the menstrual leave policy does not boil down to a ‘gender issue’ because every gender comes with its own set of ailments.
Arguments revolving around equality forms the very core of the menstrual leave policy debate. It is argued that women should not be discriminated based on their menstrual status. Arguments, along similar lines, ultimately narrow down to Aristotle’s notion of ‘treating equals equally and unequals unequally’ which has formed the crux of the equality code imbibed in article 14 of the constitution. Against the backdrop of this debate, unequals are being treated equally, as in, women who undergo menstrual pain are treated equally to men who do not undergo such pain. This, in turn, hinders women from achieving their full potential.
Another perspective of the menstrual leave policy laid out in the dismissed petition is that companies and workplaces in some states have already implemented the policy and it is discriminatory to women in those states that do not have such a policy, due to federalism. In other words, women within India are treated differently in different states. However, advocate Nundy considers this to be an incorrect interpretation of article 14. The reason might have been that policies are not justiciable per se and cannot be violative of fundamental rights. This pushed the debate further to a need for a legislation on this matter.
Advocate Abha Singh from the Bombay HC also interprets this policy in light of article 14. She demonstrates how the classification of leave made for women passes the test of reasonable classification under this particular article. This test has two requirements. Firstly, the classification made must be intelligible. Secondly, there must be a rational nexus between the classification and the object sought to be achieved by such classification. She expounds the objective of this policy to be one that ensures women do not compromise on their health and well-being, which hinders productivity. The classification made is intelligible and it bears a rational nexus with the object it seeks to achieve, that is, productivity through ensuring health.
Several constitutional principles point towards a maternity benefit policy to be put in place. For instance, article 39(a) of the Constitution states that the state must ensure ‘the health and strength of workers, men, and women.’ While article 42 provides that the state must ‘make provisions for securing just and humane conditions of work and maternity relief.’ Article 47 states that the state has a duty to ‘raise standards of living and improve public health.’ In the absence of a policy, women may be forced to work with poor health conditions in order to avail their fully salary. This deteriorates their health further and contravenes the obligations of the state laid down in the directive principles of state policy.
Article 15(3) states that the state shall make provisions for the betterment of women and children. On top of this, women have a right to work under article 19(1)(g), which they cannot fully exercise without proper working conditions during menstruation. Supreme Court advocate Pallavi Pratap highlights that women do not have access to clean and hygienic alternatives at their workplace to cater to their menstrual needs.
The menstrual leave policy debate has opened discussions in legal, social and ethical spheres. While most arguments run along the lines of social transformation, gender representation and productivity, their roots can be located in legal jurisprudence and constitutional principles that strengthen women rights. Therefore, various interpretations of article 14 by different advocates and perceptions of the equality code form the heart and soul of this debate.
The equality code under article 14 of the Constitution should undoubtedly prevail over issues of productivity, that are wrongly located in work presence rather than efficiency and contribution, especially because the classification in this particular scenario clearly passes the test of intelligible differentia. Finally, directive principles of state policy, which are non-justiciable guidelines to be followed by the state, also advocate for the menstrual leave policy in addition to fundamental rights under part III of the Constitution.
The ball is now in the Government’s court and it remains to be seen whether the government comes up with a uniform policy on menstrual leave for women across India.
