Menstrual leave Policy in India | Ft. Supreme Court of India

The Supreme Court of India recently in a Public Interest Litigation filed by Shailendra Mani Tripathi regarding Menstrual Leave Policy remarked “no one will hire women”. In the PIL (Shailendra Mani Tripathi vs. Secretary, Ministry of Women and Child Development), the petitioner sought a mandate for compulsory menstrual leave in every sector. The Apex Court declined to issue any directive on this, throwing the ball in the legislature’s court. The Chief Justice of India even hinted towards the negative impact on career opportunities for women. As per the CJI, the employer will shy away from hiring women staff to their office.

This hesitation by the Supreme Authority highlights the perspective of the Apex Court in broader implications of such policy in gender justice. It shows the deep thoughts of the Court concerning menstrual leave, so that it is not used for instigating gender bias in the longer run. This article delves deeper into the observations of the Supreme Court through the lens of gender bias and cautious stance.

Meaning of Menstrual Leave

The term “menstrual leave” has not been defined anywhere. For a terminological understanding, menstrual leaves are the concession from the office work owing to the physical discomfort faced by women during menstruation – like cramps, mood swings, headache, fatigue, etc. The idea behind menstrual leaves is that since many women face discomfort during their menstruation, they should be given off from work on those days, as a matter of right.

Under the Menstruation Leave and Hygiene Bill, 2024, menstrual leave and hygiene has been highlighted. In Section 6 of the proposed Bill, two days menstrual leave per month to all the working women of both public and private sectors has been provided. These leaves will be in addition to other leaves as per the law, contract, or policy of that establishment. However, these leaves can be taken away if the presence of women is critical for the functioning of that establishment.

Petitioner’s Argument for Menstrual Leave

The petitioner argued that menstruation is the biological foundation of maternity. So, as law protects motherhood under the Maternity Benefit Act, 1961, the same way menstruation should be protected under the law. He focussed his argument on other challenges like endometriosis, dysmenorrhea, PCOD, etc. He contended that menstruation is not a monthly calendar event, it is a medical condition causing pain, cramps, fatigue and other symptoms, making it difficult to carry out routine work. He further said that a judicial order is compulsory to fill this void in the Maternity Benefit Act, 1961. Various private entities, NLIU Bhopal, MNLU Aurangabad have implemented menstrual leave policies. Punjab University has also approved menstrual leave for their students.

Petitioner also stressed that India has signed and ratified (formally accepted) the Convention on Elimination of all forms of Discrimination against Women (CEDAW), which recognizes treating women with dignity. he further cited different countries like Spain, Vietnam, United Kingdom, Wales, China, Japan, Taiwan, Indonesia, South Korea, and Zambia which grants menstrual leave.

Supreme Court on Menstrual Leave

The matter was heard by a Bench headed by Chief Justice Shri Surya Kant comprising Justice Joymalya Bagchi. As per reports, the Bench orally remarked that a law which makes paid menstrual leave compulsory may damage the careers of young women and deprive them of equal opportunities. The Court reportedly further added that “The moment you introduce this as a law and make it a compulsory condition, you may not be able to assess the amount of damage you may do to their career. Nobody may give them big responsibilities. In judicial services, people may not assign trials to them”.

Chief Justice Surya Kant distinguished between creating a legally enforceable statutory right and a spontaneous act or policy from employers towards their women employees. The Bench encouraged policy making by employers to take care of their female employees.

Justice Bagchi reportedly said that the Court was in principle in complete agreement with the petitioner’s cause, and the “cause for affirmative action was recognised”. But it had to keep an eye on the “practical reality of the job market”. He further pointed out that, “We see from the rights’ regime, but look at it also from the business model. Will an employer be happy with the competing claims from the other gender?”

Public comments on Menstrual Leave

On different social media platforms, people are sharing their views and concerns regarding this topic. Let’s dive into the public response on menstrual leave:

Some are found favouring the judgement, others are adding some more dimensions to it.
Some have favoured menstrual leave as several other countries are following it.
Some showed different opinions like menstrual pain is an excuse and can be faked.
Some said that the two days leave per month would be difficult to implement, not all women require leave during menstruation, some women have less cramps , others have more cramps, some have no cramps. This way these leaves will cater to everyone’s needs equally.
Some suggested it would be better if female employees are allowed to work-from-home for two days a month or flexible working hours, where you can take a few hours off while working whenever they want that day.
Some said it should be optional. Some said regular office hours can be converted to work-from-home, rather than giving a complete day off.
Some found the court’s reasoning right. It would just lead to discrimination against hiring women. And some potential misuse. Companies are profit-minded. Female employees will only suffer from the compulsory menstrual leave provision because of hiring bias towards unmarried male candidates.. All over , the benefit will be zero.

Personal Thoughts on Menstrual Leave in India

It is true that if two days per month full leave is given to female employees, there will be a huge hiring bias against women. Menstrual leaves are not the solution. Also, menstrual pain is not normal in the first place. It is not necessary to happen. We need to take women’s complaints seriously. There is no way to ‘prove’ that leave is being used for menstruation, whereas with pregnancy, there are always test reports and a doctor’s signature. But what about women suffering from PCOS, Endometriosis, or other such conditions, which are not fatal illnesses, but will keep impacting them every month. Pregnancy can be faked as well.

Some countries are successfully following this law, and people respect it despite having different opinions. Practical reality reflects that during menstruation, working women have to travel, do their work and later have to do household work. Society shouldn’t normalize this, as our mothers, grandmothers, aunts etc; went through it silently.

Countries that Allow Menstrual Leave

In 2023, Spain became the first country in Europe to provide state funded three to five days menstrual leave for severe menstrual pain.

In 1947 Japan allowed Seiri Kyuka (Menstrual leave). There it is a legal right. However, it’s upon the company to decide if it is paid or unpaid.

In 1948 Indonesia provided for two days menstrual leave discomfort felt during menstruation.

In 2001 South Korea started one day of menstrual leave which if unused will be compensated. Zambia calls its one day off as mother’s day, introduced in 2015.

Indian States recognising Menstrual Leave

Karnataka has become the first state in 2025 to approve one paid menstrual leave per month for both government and private sectors. Bihar has provided two days of menstrual leave to its female government employees since 1992. Odisha provides ten annual leaves, one per month, from 2024, to its female government employees. Kerala provides menstrual leaves to its female students in state universities since 2023. Sikkim implemented menstrual leave for women employees of the High Court registry.

Analysis of Menstrual Leave in India

Menstrual leave is a misnomer because unless there is a gynecological condition like PCOS, PCOD, endometriosis, primary or secondary dysmenorrhea or thyroid disorder, etc., it is not as severe. Every woman does not face this condition. There is a requirement of the signature of a medical practitioner registered with the Medical council of India. Unless the concerned female has no such challenge, the doctor should not give green signal for the menstrual leave.

Even in endometriosis, many hormonal pills are prescribed so that menstruation is paused. For PCOS, which mostly starts from insulin resistance, doctors prescribe diabetes pills to control it. Menstrual pain is not normal, it indicates something wrong with hormonal health or too high a level of stress.

Menstrual leave has another positive side also, leave on those days will help in resting and taking required nutrition. This will reduce their kind-of-hangover next week. Menstruation leads to loss of minerals, especially iron, from a female’s body. A leave will help women rest and prepare the body completely for work after it is over.

Even in ancient India, ladies were prohibited from attending to worship, temple, kitchen so that they can rest and get better. Even if a woman does not have pain or underlying health concerns, she still loses essential minerals and suffers from tiredness, reduced concentration, and low mood. Menstrual leave can be a preventive care. Menstrual leave also aligns with the constitutional requirement of humane working conditions.

Conclusion

The Supreme Court identified the real world challenges before the female workforce. “No one will hire them” remark suggests the deep introspection of the market and work-culture by the bench. This understanding is not based on certain legal principles and theories of justice. The Indian Constitution does not favour maintaining the society the way it is. Work culture is not the basic feature of the Constitution that cannot be challenged. Not hiring women is unfair with respect to gender, education, culture, and law. There must not be any bias owing to the natural conditions associated with a gender. Merit of the candidate should be the deciding point for employing not how much leaves they will take. Constitution ideals are to change and improve society. They are there to remove inequality and injustice. The right of equality says that like must be treated alike and unlike must be treated unlikely. Recruiters are not always legally literate. Human rights and constitutional ideals are not known to every citizen. So the awareness of these rights and morals must be encouraged over submitting to the profit mindedness of the employers.

Normalizing menstrual leave in India will help in removing taboo relating to this topic as well as difficulty in expressing the pain. These leaves can be regarded as legitimate means of care, equally important as medicine designed to preserve female health without any professional disadvantage. The Apex Court has shown concern on challenges before women in getting the opportunity in the market, but has not refused to accept them. Respective states should consider this challenge and take steps in ensuring sound health to the woman workforce in their states.

Menstrual leave Policy in India | Ft. Supreme Court of India

Meaning of Menstrual Leave