Appellant
Appellant
Appellant
It is most humbly submitted in front of this Hon’ble Supreme Court of Indus that the present
Public Interest Litigation filed by Women Rights Sangathan is maintainable. The council
asserts its point based on: [1.1] Recognition of Public Interest Litigation by NGO having
locus standi, [1.2] Recognition of great Public Interest in the present petition, [1.3]
Recognition of the current matter at hand in various laws, bills and statutory provisions.
I.1.A Public Interest Litigation is a widely accepted concept of judicial remedy that our
Sovereign nation has accepted. To Interpret the literal meaning of PIL the council
would like to submit that:
I.1.A.1 Public: Pertaining to a state, nation, or whole community; proceeding from, relating
to, or affecting the whole body of people or an entire community.1
I.1.A.2 Public Interest: Public interest means the interest or right belonging to the society, a
particular class of the community or a group of people. PILs are filed to resolve a
problem affecting the legal rights of a community or the public at large.2
I.1.B In Shrouds Judicial Dictionary4, 'public interest' is defined thus: PUBLIC INTEREST
(1) A matter of public or general interest "does not mean that which is interesting as a
gratifying curiosity or a love of information or amusement' but that in which a class of
the community have a pecuniary interest, or some interest by which their legal rights
or liabilities are affected."5
I.1.C The Supreme Court has defined Public Interest Litigation (PIL) as “a legal action
initiated in a court of law for the enforcement of public interest or general interest in
1
Blacks Law Dictionary, 11th Edition 2019
2
Ibid
3
Ibid
4
Shrouds Judicial Dictionary, Vol. 4 (IV Edition),
5
Cambell C.J., R. V. Bedfordshire 24 L.J.Q.B. 84
which the public or a class of the community have pecuniary interest or some interest
by which their legal rights or liabilities are affected.”6
I.1.D The PIL system in India allows any member of the public with 'sufficient interest' to
approach the court to enforce the rights of other persons and redress a common
grievance. In a PIL, an individual or organization with a genuine concern for public
welfare can seek judicial intervention on behalf of a group of people or the
community at large. The intent behind the PIL system is to ensure that the
marginalized and vulnerable § s of society have access to justice, and their rights are
protected.
I.2.A In the present case at hand, Women Rights Sangathan (hereinafter referred to as
WRS), an NGO which conducts workshops, facilitates discussions, provides legal
advice and pro bono legal services to those who might encounter cases of sexual
violence at workplace and has been working since 2008, to prevent gender and sex-
based violence against women. They have filed a Public Interest Litigation in favour
of millions of women who have to suffer through the pain of menstruation for almost
a week, every month.
I.2.B 39 million women in our sovereign nation are currently employed in India 7. These
women suffer through eternal pain every month while working 9 to 5, Emily Cooper a
working professional in Dripkart Emily Cooper, a resident of (Indus) was an Engineer
by profession and she was working at an MNC named Dripkart. Emily also got her
period like any other woman and for which she took three days off. For which here
salary at the end of month was deducted. WRS took this matter to the Hon’ble
Supreme Court, it may be noted that it is not fighting for Miss Cooper but for whole
feminine workforce of our nation. It is a matter of great public importance as millions
of employed women.8
I.2.C Justice Krishna Iyer laid the foundational concept of Public Interest Litigation
(PIL) in India, promoting the idea that collective societal issues could be addressed
6
Janta Dal Vs H.S. Chowdhary AIE 1993 SC 892
7
Female Labour Utilization, Govt. Of India April 2023
8
Ibid
through legal channels.9 Justice P.N. Bhagwati expanded the scope of PIL, stating that
“any member of the public or social action group acting bonafide” could invoke the
jurisdiction of High Courts or the Supreme Court to seek redressal for the rights of
those unable to approach the court due to disabilities. This judgment established PIL
as a tool for enforcing public duties and addressing executive misdeeds. 10 The
Supreme Court declared that even a case filed for personal grievance could be
considered under PIL if it serves the public interest, enhancing judicial oversight in
matters affecting societal welfare.11
I.2.D The Supreme Court ruled that the petitioner did not need to be a riparian owner to
challenge pollution in the Ganga River. The case emphasized the right of any
concerned citizen to seek enforcement of environmental laws for the public good.12
I.2.E Public interest litigation has been entertained by relaxing the rules of standing. The
essential aspect of the procedure is that the person who moves the court has no
personal interest in the outcome of the proceedings apart from a general standing as a
citizen before the court. This ensures the objectivity of those who pursue the
grievance before the court.13
I.2.F There has to be a real and genuine public interest involved in a litigation and there
must be concrete and credible basis for maintaining a cause before the Court and not
merely an adventure of knight errant borne out of wishful thinking. Only a person
acting bonafide and having sufficient interest in the proceedings of PIL will alone
have a locus standi and can approach the Court to wipe out the tears of the poor and
needy, suffering from violation of their fundamental rights, but not a person(s) for
personal gain or private profit or any other oblique consideration.
I.3 Recognition of the current matter at hand in various laws, bills and statutory provisions
I.3.A Menstrual leave and International Law
9
Mumbai Kamagar Sabha Vs. Abdul Thai AIR 1976 SC 1455
10
S.P. Gupta Vs. Union Of India 1981 Supp (1) SCC 87
11
Indian Banks Association, Bombay & Ors. Vs. M/S Devkala Consultancy Service And Ors AIR 2004 SC
2615
12
M.C Mehta Vs. Union Of India AIR 1987 SC 1086
13
Bandua Mukti Morcha Vs Union Of India AIR 1984, 3 SCC 161
I.3.A.1 Menstrual leave refers to a type of leave that allows women to take time off work or
school during their menstrual cycle to manage menstrual pain and discomfort. While
menstrual leave is not yet widely recognized as a legal right under international law,
some countries have introduced laws or policies that provide for menstrual leave. 14
For example, in 2017, Zambia became the first African country to introduce menstrual
leave, allowing female workers to take off one day per month during their menstrual
cycle. Other countries that have introduced similar laws or policies include Japan,
South Korea, and Taiwan.15 Under international human rights law, discrimination
based on sex is prohibited, and women are entitled to equal treatment in the
workplace. While menstrual leave is not specifically recognized as a legal right under
international law, women may be able to argue that they are being discriminated
against if they are denied the right to take time off work or school during their
menstrual cycle.16
I.3.B Menstrual Leave and Hindu Philosophy
I.3.B.1 Hindu philosophy has a complex relationship with menstruation. On the one hand,
Hindu scriptures recognize menstruation as a natural bodily process and do not view it
as impure or sinful17. However, there are also many cultural and social taboos
surrounding menstruation that have developed over time. In Hinduism, there is a
concept of "Ashoucha," which refers to a state of impurity or uncleanliness. 18
Menstruating women were traditionally considered to be in a state of Ashoucha and
were expected to refrain from certain activities, such as entering temples or
participating in religious ceremonies, until they had completed their menstrual cycles
and undergone a purification ritual.19 These cultural and social taboos surrounding
menstruation have contributed to the stigma surrounding menstruation in India and
14
‘Menstrual Leave Dissent And Stigma Labelling: A Comparative Legal Discourse By Sayed Qudrat Hashimy
15
Sayed Qudrat Hashimy, ‘LEGAL PARADIGM OF MENSTRUAL PAID LEAVES POLICY IN INDIA: A
JURISPRUDENTIAL DISCOURSE’ (2023) 3 Trinity Law Review 12.
16
Sayed Qudrat Hashimy, ‘Emerging Paradigm Of Disability Laws And Protecting Differently Abled Person:
Flying Kites In The Indian Sky’ (2023) 3 1.
17
Ibid
18
Hashimy, ‘Legal Paradigm Of Menstrual Paid Leaves Policy In India: A Jurisprudence Discourse’ (N4)
19
Hashimy, ‘Menstrual Leave Dissent And Stigma Labelling’
20
Supra At 19
in order to maintain balance and harmony in society. Some scholars argue that
providing menstrual leave to women is a way of recognizing the importance of this
natural cycle and promoting balance and harmony in the workplace and society. In
theory, while Hindu philosophy recognizes menstruation as a natural bodily process
and does not view it as impure or sinful, cultural and social taboos surrounding
21
Ibid
I.3.D.1 The Indian Constitution guarantees certain fundamental rights to all citizens,
including the right to equality, the right to life and liberty, and the right to work with
dignity. These rights are enshrined in Articles 14, 15, 21, and 23 of the Constitution.
The provision of menstrual leave can be seen as an important step towards ensuring
that women are able to exercise these fundamental rights in a meaningful way.
Menstrual leave policies can help to promote gender equality by recognizing and
addressing the unique challenges that women face in managing their menstrual cycles,
and by ensuring that women are not discriminated against in the workplace or in
schools on the basis of their gender. At the same time, it is important to ensure that
menstrual leave policies do not violate other fundamental rights guaranteed by the
Constitution, such as the right to work and the right to equality. Menstrual leave
policies should be implemented in a way that is fair, non-discriminatory, and
respectful of the rights of all employees, regardless of gender.
I.3.E Menstrual Leave and labour law
I.3.E.1 The provision of menstrual leave intersects with Indian labour law, which is designed
to protect the rights of workers and ensure that they are treated fairly by their
employers. In India, the right to leave is governed by the Leave Rules of the Industrial
Employment (Standing Orders) Act, 1946, which applies to all establishments
employing more than 100 workers. While there is no specific provision for menstrual
leave in Indian labour law, the Maternity Benefit Act, 1961, provides for paid leave
for pregnant women and new mothers. Some companies in India have also introduced
menstrual leave policies as a way to recognize and address the challenges that women
face during their menstrual cycles. However, there are concerns that menstrual leave
policies could be misused or abused by employers, or that they could lead to
discrimination against women in hiring or promotion decisions. In order to address
these concerns and ensure that women are treated fairly and equitably in the
workplace, it is important to establish clear guidelines for the provision of menstrual
leave and to ensure that employers are held accountable for complying with these
guidelines.
I.3.F Menstrual leave and Employment issues
I.3.F.1 The provision of menstrual leave raises a number of employment issues in India,
particularly with respect to discrimination, productivity, and costs. One of the primary
concerns with menstrual leave is that it could lead to discrimination against women in
hiring or promotion decisions. Employers may view women as less productive or
reliable due to their menstrual cycles, which could lead to them being passed over for
job opportunities or promotions. This could result in a gender pay gap and contribute
to gender inequality in the workplace. Another issue with menstrual leave is its
potential impact on productivity. Employers may worry that menstrual leave could
disrupt work schedules or create staffing shortages, leading to a decrease in
productivity. However, studies have shown that allowing women to take menstrual
leave can actually increase productivity by reducing absenteeism and improving
employee morale. Finally, there is a cost associated with providing menstrual leave.
Employers may worry that they will have to bear the cost of hiring replacement
workers or paying overtime to cover the absence of women on menstrual leave.
However, the cost of menstrual leave can be offset by the benefits of improved
employee morale, reduced absenteeism, and increased productivity. Therefore, while
the provision of menstrual leave raises a number of employment issues in India, it is
an important policy issue that can contribute to gender equality and improve
workplace productivity. It is important for employers and policymakers to carefully
consider these issues and establish clear guidelines for the provision of menstrual
leave to ensure that it is implemented in a way that is fair and equitable for all
employees.
I.3.G Menstrual Leave and women’s Empowerment
I.3.G.1 The provision of menstrual leave can be a powerful tool for women's empowerment in
India. By recognizing the unique challenges that women face during their menstrual
cycles and providing them with time off to manage their symptoms, menstrual leave
can help to promote gender equality in the workplace and improve women's overall
well-being. One way in which menstrual leave can empower women is by allowing
them to take control of their own health and well-being. Women who are able to take
time off work during their menstrual cycles are better able to manage their symptoms
and take care of themselves, which can lead to improved physical and mental health.
This, in turn, can help to reduce absenteeism and increase productivity. In addition to
improving women's health, menstrual leave can also help to promote gender equality
in the workplace by reducing the stigma and discrimination that women face. By
recognizing the challenges that women face during their menstrual cycles and
providing them with time off to manage their symptoms, employers can demonstrate
their commitment to creating a workplace that is inclusive and supportive of women.
Finally, menstrual leave can also help to promote women's economic empowerment
by reducing the gender pay gap and improving women's overall employment
prospects. By providing women with the flexibility to manage their menstrual cycles,
employers can help to create a more level playing field for women in the workplace,
which can lead to greater economic opportunities and better outcomes for women and
their families.49 Thus, provision of menstrual leave is an important policy issue that
can play an important role in promoting women's empowerment in India. By
recognizing the unique challenges that women face during their menstrual cycles and
providing them with time off to manage their symptoms, menstrual leave can help to
promote gender equality in the workplace and improve the overall well-being of
women.
I.3.H Menstrual Leave and Feminism
I.3.H.1 The provision of menstrual leave can be seen as a feminist issue in India, as it seeks to
address the specific challenges that women face in the workplace due to their
menstrual cycles. Feminism is about promoting gender equality and addressing the
ways in which women are disadvantaged in society. One of the ways in which women
are disadvantaged in the workplace is through the stigmatization of menstruation.
Menstrual leave seeks to challenge this stigma by acknowledging the unique
challenges that women face during their menstrual cycles and providing them with
time off to manage their symptoms. Menstrual leave can also be seen as a way of
promoting women's agency and autonomy. By providing women with the ability to
manage their menstrual cycles in a way that is convenient and supportive of their
well-being, menstrual leave can help women to feel more in control of their bodies
and their lives. This can help to promote a sense of empowerment and self-
provide women with menstrual leave. Like last year in August, a food company,
“Zomato”, enabled women to take up to 10 days of period leave per year, but there is
no such central rule addressing Menstrual Leave. Menstrual Benefit Bill, 2017 was
introduced allowing women the right to avail a four-day menstrual leave. The bill,
however, was rejected by the Ministry of Woman and Child Affair but there are many
who applauded the bill, which shows that India is only a few steps away from
enacting a policy that will benefit all working women of the society. Essentially, the
grounds made against menstrual leave are that some individuals believe it violates the
right to equality, which is frequently claimed by men. Another viewpoint is that this
makes women more susceptible because firms prefer to hire male staff over female
employees. Lastly, it will exacerbate the stereotype that women are too sensitive, too
emotional, or even too expensive to be hired as employees in our society. The last two
arguments are essentially a problem with societal thinking that every woman has to
deal with on daily basis, and this type of thinking should not be aired by not
supporting menstruation leave.
II. Whether non-recognition of menstrual leave to girls and women of all ages is
violative of their Fundamental Rights under Art. 14, 15 & 21.
The council most humbly submits that the petition filed by WRS has a substantive issue of
non-recognition of menstrual leave to girls and women of all ages, which is violative of their
[2.1] Fundamental Rights under Articles 14, 15 and 21. [2.2] Not only is it violative of these
fundamental rights it also violates provisions under Labour law. [2.3] Laws and Bills that
directly or indirectly relate to menstrual leave in India
liability upon the State to frame laws that shall protect the ones who need it. Thus, the
meaning that this Article implies isn’t that everybody should be treated equally, but
that there should not exist any special treatment between classes without justifiable
reasons attached for the same. Equal protection of the laws means that people
similarly situated ought to have the same laws applicable to them. If an act which
protects the right of women to take maternity leave is valid and has been welcomed, it
is difficult to argue why the notion of menstrual leave needs to be targeted as being
unfairly prejudicial to ones who can’t avail it given that nobody has a choice when it
comes to period or the way it effects both mental and physical wellbeing.
II.1.C In Air India v. Nergesh Meerza22, The Court struck the impugned regulations, stating
that the thought there was an intelligible differentia on the basis of sex, the
classification did not have any nexus with the object of the Act; it was arbitrary and
unreasonable, thereby violating Article 14.
II.1.D The spirit of Articles 14 and 15 of the Indian Constitution is encapsulated in the
notion of Aristotle, “Equality consists of the same treatment of similar persons.” This
implies that equal treatment of unequal persons siphons down to discrimination.
Similarly, in the landmark judgment of Ram Krishna Dalmia v. Justice Tendolkar 23,
where the jurisprudence of equality before the law has been described by the Supreme
Court, as allowing the state to make differential classifications of subjects based on a
rational nexus, having an objective to be achieved by the differentia.
22
1982 SCR (1) 438
23
AIR 1958 SC 538
24
2008 SC 663
25
Punjab Excise Act
import (implementation and security). When the said Act came into force, the idea of
equality between the sexes was non-existent. However, the Court recognized that we,
as a society have reached a time where current realities require us to take leave of the
themes such as those enshrined in the impugned §. There is a tension between the
right to employment and security of the employees (thereby invoking the doctrines of
self-determination and interest of the individual); this cannot be interpreted in a
manner so as to handicap the women and undermine their autonomy in choosing the
profession they choose; further, it is the duty of the State to come up with new models
of security to ensure that women are not rendered vulnerable at their workplace. The
Supreme Court took a progressive step and held that, in light of the foregoing, the
impugned provision could not be considered to be a ‘special provision’ meant for the
benefit of women; “It is the state’s duty to ensure circumstances of safety which
inspire confidence in women to discharge duty freely in accordance to requirements
of profession they choose to follow”.
II.2.B Clause 3 of Article 15 states that nothing in this Article shall prevent the State from
making any special provision for women and children.The special treatment meted
out to women and children by Article 15(3) thus recognizes the need to overcome the
structural discriminations prevalent in society through positive discrimination. The
Article lays the foundation for gender equality not only in terms of equality of
opportunity but also in terms of equality of results. It seeks to enable women to
surpass the obstacles of socio-economic, cultural or political discrimination and
facilitates the goal of gender parity.
II.2.C The Indian Constitution's Fundamental Rights, specifically Article 14, 15, and 21,
guarantee essential rights such as equality, life, personal liberty, and the right to work
and live with dignity. These rights are vital in ensuring that everyone can live a life of
respect without discrimination or oppression. One recent development that stems from
these rights is the introduction of a paid menstrual leave policy. This policy is a
proactive approach towards enabling women to fully and meaningfully exercise their
Fundamental Rights, without any discomfort or hindrance caused by menstruation. It
recognizes the unique challenges that women face during this time and aims to offer
them the necessary support to work and live with dignity.
II.2.D The spirit of Articles 14 and 15 of the Indian Constitution is encapsulated in the
notion of Aristotle, “Equality consists of the same treatment of similar persons.” This
implies that equal treatment of unequal persons siphons down to discrimination.
Similarly, in the landmark judgment of Ram Krishna Dalmia v. Justice Tendolkar 26,
where the jurisprudence of equality before the law has been described by the Supreme
Court, as allowing the state to make differential classifications of subjects based on a
rational nexus, having an objective to be achieved by the differentia.
II.2.E In Anjali Roy v. State of West Bengal27, the court further held that all differentiation
would not amount to discrimination if it is made owing to natural differences in
persons.
II.2.F In a diverse country like India, ensuring that equal opportunity is granted to the
people acquires great importance. This is to ensure the empowerment of every
individual to fulfill their goals without any discrimination. The concept of ‘Protective
Discrimination’ under Article 15 of the Indian Constitution helps achieve the goal of
equal opportunity in the context of disadvantaged persons, to help them live a
meaningful life. A great example of its effective implementation would be Article
15(5) where special provisions are made for citizens of socially and educationally
backward classes to put them on an equal platform. Article 15(5) is an example of
how special provisions are made for citizens of socially and educationally backward
classes to place them on an equal platform with others.
II.2.G Considering menstruation is a bodily phenomenon, that no one including the
menstruating girl or women has any control over, it applies to a larger argument
comprising Article 15(3) of the Indian Constitution which talks about special
provisions for women and children.
II.2.H Article 15 discrimination on the grounds only of sex has been prohibited. However,
clause 3 of the said article provides that the State can make special provisions solely
for women and children and nothing in article 15 shall prevent the State from making
such provisions. Thus, from the above two Articles it can be observed that the
Constitution itself casts a duty on the State for providing relief to women in matters of
employment and a healthy working environment for the women employees, both
physically and mentally.
II.2.I Clause 3 of Article 15 states that nothing in this Article shall prevent the State from
making any special provision for women and children. The special treatment meted
out to women and children by Article 15(3) thus recognizes the need to overcome the
26
AIR 1958 SC 538
27
AIR 1952 CAL 822
28
AIR 1952 CAL 822
29
AIR 1958 SC 538
II.3.B.1 “21. Protection of life and personal liberty- No person shall be deprived of his
life or personal liberty except according to procedure established by law.” The right to
life under this article includes the right to live with human dignity.In a country like
India where women have to face many kinds of social stigmas, either in the society or
at their workplace, in many cases
II.3.C The Indian Constitution's Fundamental Rights, specifically Article 14, 15, and 21,
guarantee essential rights such as equality, life, personal liberty, and the right to work
and live with dignity. These rights are vital in ensuring that everyone can live a life of
respect without discrimination or oppression. One recent development that stems from
these rights is the introduction of a paid menstrual leave policy. This policy is a
proactive approach towards enabling women to fully and meaningfully exercise their
Fundamental Rights, without any discomfort or hindrance caused by menstruation. It
recognizes the unique challenges that women face during this time and aims to offer
them the necessary support to work and live with dignity.
II.3.D The Right of Women to Menstrual Leave and Free Access to Menstrual Products Bill
of 2022 30(The Bill), fundamentally noted that menstrual leaves are an expansion of
Article 21, through which it proposes to allow a maximum of three days of paid
menstrual leaves for menstruating women. ‘Right to Life’ under Article 21 entails
‘meaningful existence’ as opposed to ‘animal existence,’ as stated by the Supreme
Court in Kharak Singh v. State of Uttar Pradesh 31. The ‘meaningful existence’ here
entails that right to life should not be restricted to a ‘breathe and exist’ schedule and
appropriating a more reasonable and considerable approach to the meaning
attributable to Article 21. In Unni Krishnan v. State of Andhra Pradesh 32, the Court
further held that the ‘Right to Health’ would fall under the ambit of Article 21, thus,
30
Right Of Women To Menstrual Leave And Free Access To Menstrual Products Bill Of 2022
31
AIR 1963 SC 1295
32
AIR 1993 SC 2178
making health an inherent necessity for a dignified life. Reading the existing
constitutional provisions and The Bill together, one being a grundnorm, and the other
being a proposition for a potential legislation, it can be inferred that paid menstrual
leaves may be claimed by extending the Right to Health, as under the Right to Life.
II.4Labour Law
II.4.A The Equal Remuneration Act, of 1976 33(The Act) provides that men and women have
to be paid equally if they do ‘equal work.’ This applies when the work is being done
under “similar working conditions” which has been provided under § 2(h) of The Act.
In the present case, the authors wish to establish that menstruating women are not
working under “similar working conditions.” The same can only be true when they’re
granted paid menstrual leaves on days when their capacity to work is being hindered
by a bodily phenomenon that is not under their control, as has been stated above.
II.4.B Further, The Act was brought in to replace the Ordinance of 1975, and the objective
of the Ordinance itself was to promote employment opportunities for women while
ensuring that there was no discrimination against their recruitment. This objective of
The Act is directly in contradiction with the apprehensions that the government has
put forth regarding the implementation of the paid menstrual leave policy. In due
cognizance of the same, “Work of a similar nature” must be construed in terms of the
‘period of applicable work’ and not merely the quantity of work, because the
circumstances of the employee must be taken into account. Thus it is important to
ensure that women are being given an equal opportunity to work based on their
capacity to work, which would establish equity between the male and female
employees and would ensure that the women’s fundamental rights are not being
violated.
II.4.C It is crucial to examine the menstrual leave policies around the world in order to
understand where India stands and the possible takeaways from the policies in other
nations. Japan, being the country of origin of the ‘menstrual leave’ notion, has a
33
Equal Remuneration Act,1976
mandatory menstrual leave policy in play under Article 68 of Labor Standards Act if
the female employee expresses difficulty in working during her menstrual period, but
the question of ‘paid’ menstrual leave has been a concern in Japanese Workplaces.
South Korea, by means of the 2001 domestic legislation, have permitted one day of
‘unpaid’ physiological leave per month to female workers, while employing a
stringent leave-grant policy for employers to follow and approve these leaves. The
Philippines on the other hand by means of their 2019 arrangement, have discussed to
allow two paid leaves per month for menstruating female employees. The Spanish
authorities have been the first ones in Europe to approve ‘paid menstrual
leaves’ although the period cap regarding the leave(s) remains unclear. Indonesia,
being another country that provides its citizens with a curated menstrual leave policy,
allows two days paid leave, which in practice is purely discretionary. It is crucial to
understand that these policies are either specifically targeted towards ‘female’
employees and not ‘menstruating bodies,’ or offer unpaid menstrual leaves. They’re
discretionary in practice, which clearly show that India along with other nations is still
in its natal stage. India has the opportunity to become a trendsetter and establish a
model paid menstrual leave framework by implementing a policy which allows for
paid menstrual leaves to women and covers the gaps as found in other foreign
policies.
II.4.D The Central government, though, at present has dismissed the idea of the
implementation of a paid menstrual leave policy, but in the future if the legislative
bodies table such a policy, they should take into account that it is in cognizance of the
fundamental spirit of all the Constitution. The policy should not cater protection of a
handful of rights, and must strive to achieve the Constitution which is the equitable
advancement of all. Similarly, it should cater protection to all and thus, must be
gender neutral in its approach. In the landmark case of the National Legal Service
Authority [NALSA] v UOI, the Supreme Court observed that transgender persons
have faced immense discrimination in all spheres of their lives and held that the Right
to Equality under Article 14 was framed in gender-neutral terms and consequently
would extend to the transgender persons also. Similarly, the prospective paid
Menstrual Leave policy must not limit its scope to women but extend itself to other
menstruating bodies as well, including trans-women, to keep in consonance with the
objective of the Bill to ensure trans-women were not discriminated against.
lens of dignity and equality enables us to theoretically justify how the idea fits in our
Constitutional setup.
II.6Laws In Place
II.6.A The Menstrual benefit Bill 2017 provides female employees 2 days of menstrual
leaves every month, leave from school in case of female students, overtime allowance
for female employees in case they choose to work during menstruation and 30
minutes of rest, twice a day for 4 days in case the female employee opts to work
during her menstruation.
II.6.B The same bill was introduced again this year by Ninong, on the first day of the Budget
Session of 2022 before the Arunachal Pradesh Legislative Assembly which was
dismissed by the Legislative Assembly as it deemed it to be an ‘unclean’ topic. The
irony is that neighbouring state Assam is the home to the Kamakhya Temple, which is
a shakti peeth where the yoni (genitals, womb) of deity Sati fell after Shiva tandava.
Ambubachi Mela is celebrated every year to celebrate the menstruation period of the
goddess.
II.6.C The Women's Sexual, Reproductive and Menstrual Rights Bill, 2018 is a proposed
bill by Shashi Tharoor, MP from Thiruvananthapuram that includes provisions to
ensure access to safe and legal abortion, comprehensive sex education, and affordable
and accessible menstrual health products.
II.6.D Menstrual pain is a tragedy that so many women are forced to suffer in silence, with
their pain dismissed as mere "womanly troubles" and not given the attention and
recognition it deserves. There exist some contentions that period leaves will push
back women in the equality line but at the same time we need to acknowledge that
The Directive Principles of State Policy (DPSPs) in the Constitution of Indus provide
guidelines for the government to promote the welfare of the people and establish a just
society. Socioeconomic equality is one of the core principles enshrined in the Directive
principles of state policy .
Menstrual leave, if recognized and implemented, aligns with the principles of socioeconomic
equality as enshrined in the Directive Principles of State Policy (DPSPs) in the Constitution
of Indus. This recognition would not only address the unique health needs of female
employees but also promote gender equality in the workplace, contributing to a more
inclusive and equitable society.
Article 11:
"1. States Parties shall take all appropriate measures to eliminate discrimination against
women in the field of employment in order to ensure, on basis of equality of men and
women, the same rights, in particular:
(f) The right to protection of health and to safety in working conditions, including the
safeguarding of the function of reproduction.
§ 38 (2) of Indian constitution states that The State shall, in particular, strive to minimize the
inequalities in income, and endeavor to eliminate inequalities in status, facilities and
opportunities, not only amongst individuals but also amongst groups of people residing in
different areas or engaged in different vocations.if menstrual leaves were granted to female it
will eliminate the inequality and pave the way for greater equality.
34
AIR 1997 SC 3011
35
Convention On The Elimination Of All Forms Of Discrimination Against Women
Article 39 of the Constitution directs the State to ensure that there is no discrimination on the
grounds of sex. Providing menstrual leave helps fulfill this directive by ensuring that female
employees are not discriminated against based on their biological sex.
Mandating paid menstrual leave in the workplace is essential for promoting gender equality
and supporting women's health. Women's health needs, including menstruation, are often
overlooked in the workplace, leading to disparities in treatment and opportunities. Providing
paid menstrual leave acknowledges and addresses these specific health needs, ensuring that
female employees can manage their menstruation without compromising their economic
security or productivity. In Nargesh Meerza36 case , the Supreme Court recognized the
importance of promoting gender equality in the workforce. The court held that denying
maternity benefits to female employees contravenes Articles 14, 15, and 16 of the
Constitution. This landmark case underscores the need for workplace policies that support
women's health and well-being.
Article 42 of the Directive principles of state policy directs the state to provide just and
humane conditions of work and maternity relief. Mandating paid menstrual leave aligns with
this directive by ensuring that female employees have access to necessary health
accommodations in the workplace, contributing to their overall well-being.
2 Right to Health and Dignity: Menstrual leave contributes to the right to health and dignity,
which are essential components of socioeconomic equality. By allowing women to manage
their menstrual symptoms without compromising their productivity or dignity, menstrual
leave ensures that female employees can fully participate in the workforce on equal terms as
their male counterparts. The Supreme Court in Consumer Education & Research Centre v.
37
Union of India :This case affirmed the importance of protecting the right to health as
integral to human dignity and socioeconomic well-being and recognized the right to health as
a fundamental right implicit in the right to life and personal liberty under Article 21 of the
Constitution of Indus.
The Directive Principles of State Policy in Part IV of the India Constitution provide a basis
for the right to health. Article 39 (E) directs the State to secure health of workers, Article 42
directs the State to just and humane conditions of work and maternity relief, Article 47 casts a
36
Air India V. Nargesh Meerza AIR 1981 SC 1829
37
Consumer Education & Research Centre V. Union Of India AIR 1995 SC 922
duty on the State to raise the nutrition levels and standard of living of people and to improve
public health. Moreover, the Constitution does not only oblige the State to enhance public
health, it also endows the Panchayats and Municipalities to strengthen public health under
Article 243G.
Given no explicit recognition of the right to health or healthcare under the Constitution, the
Supreme Court of India in Bandhua Mukti Morcha Case38 interpreted the right to health
under Article 21 which guarantees the right to life. In State of Punjab & Ors v Mohinder
Singh Chawla39 the apex court reaffirmed that the right to health is fundamental to the right to
life and should be put on record that the government had a constitutional obligation to
provide health services. In State of Punjab & Ors v Ram Lubhaya Bagga 40, the court went on
to endorse the State’s responsibility to maintain health services.
3 Workplace Diversity and Inclusion: Providing menstrual leave fosters workplace diversity
and inclusion by acknowledging and accommodating the biological differences among
employees. This creates a more supportive and inclusive work environment where women
feel valued and respected. The Supreme Court in National Legal Services Authority v. Union
of India41 recognized the importance of creating inclusive workplaces that accommodate the
needs of diverse groups, including women.
38
Supra At 10
39
AIR 1997 SC 1225
40
AIR 1998 SC 1703
41
AIR 2014 INSC 275
42
Supra At 22
In Olga Tellis v. Bombay Municipal Corporation 43 (1985), the Supreme Court held that the
right to life under Article 21 of the Constitution includes the right to livelihood. Providing
paid menstrual leave safeguards women's right to health and livelihood, as it allows them to
prioritize their health without risking their employment or financial stability.
Article 39 of the DPSPs emphasizes the state's obligation to ensure citizens' right to an
adequate means of livelihood. Mandating paid menstrual leave aligns with this directive by
removing barriers to women's participation in the workforce and promoting their economic
empowerment.
Right to Work: Menstrual leave ensures that women can continue to work effectively without
being penalized for their biological functions. By providing women with the opportunity to
take time off during menstruation without fear of losing their jobs or facing financial
repercussions, menstrual leave helps secure their right to work. This is particularly important
considering that menstrual symptoms can affect productivity and well-being, making it
challenging for women to fulfill their work responsibilities without adequate support.
Right to Education: Menstrual leave also intersects with the right to education, especially for
female students. Many girls may miss school during menstruation due to discomfort, lack of
access to menstrual hygiene products, or social stigma surrounding menstruation. By
providing menstrual leave to female students, educational institutions can ensure that girls do
not miss out on valuable learning opportunities due to menstruation. This helps secure their
right to education and promotes gender equality in access to education.
43
AIR 1986 SC 180
One of the provisions from which such a policy of providing period leave for the women can
be justified is Article 42 of the constitution. This Article falls under the chapter of Directive
Principles of State Policy. As per this article, the State is mandated to “make provision for
securing just and humane conditions of work and maternity relief”. Further, under
The former specifically relates to the “just and humane conditions of work”. Now considering
the policy of period leave with regards to this it can easily be concluded that the women
employees who, because of the absence of such a policy are bound to work during their
menstruation period, such a practice would qualify as unjust and inhumane and a violation of
this Article. The State is under an obligation, by virtue of Article 42, to ensure “just and
humane conditions of work” for women employees and to fulfil its obligation.
The legislators should be reminded of the objectives of the state as given under Part IV
(DPSPs) in Article 39(e) and Article 47, which aim to secure nutrition and the standard of
living and to improve public health.” Also, Article 42 states that the “State shall make
provision for securing just and humane conditions of work and for maternity relief.”