SC refusal to hear menstrual leave petition draws criticism

Top court shying away from its responsibility, say critics


February 26, 2023

/ By / New Delhi

SC refusal to hear menstrual leave petition draws criticism

Calling it a policy issue, the Supreme Court advised the petitioner to approach the Union government

A week after Spain became the first European country to make legislation for menstrual leaves, in India the Supreme Court refused to entertain a petition seeking directions for all state governments to make provisions for them. The court’s refusal to hear the petition has drawn criticism from many and not just women as only two Indian states have policies governing menstrual leave for women, even as many countries have already adopted the policy.

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The refusal by Supreme Court bench led by Chief Justice DY Chandrachud on Friday to hear a plea seeking directions to all states of India to make provisions for menstrual leaves for women across the country, has drawn sharp criticism from many, who accuse the top court of not addressing its responsibilities.

‘‘By advising the petitioner to make a representation before the Central government, the court, in a way, is shying away from recognising the policy making is also the domain of the judiciary. However, the positive side of this case is that even though the Supreme Court disposed the petition, it has pushed for government to look into it by suggesting that the representation can be made to the Union Ministry of Women and Child Development. Now the government must look into the matter and come up with a policy which is important for women’s participation in the workforce,’’ Shipra Raj, assistant professor of Communication & Public Policy at the Delhi School of Journalism, University of Delhi tells Media India Group.

On Friday, while dismissing the plea, the Supreme Court said that the matter fell under the purview of government policy and advised the petitioner to approach the Union government.

The petition said that denial of menstrual leave was a violation of Article 14 and that despite the fact that women suffered from similar physiological and health issues during their menstrual cycles, they were being treated differently in different states of India. ‘‘However, women, having one citizenship, i.e., of India, must be treated equally and shall be conferred with equal right,” said the petition, which has found support from many, including men.

“Providing menstrual leave can help in promoting gender equality, as mentioned and given under Article 14 of the Indian Constitution, and support the well-being of their female employees. It can also help in women empowerment as empowerment does not only include providing Jobs, rather than understanding their needs and providing them facilities and healthy menstrual leave culture which maximise the number of participation of women without deteriorating their health by taking unwanted painkillers to work tirelessly at the workplace. Therefore, I believe that the legislature should pay attention to the opinion of the honourable court and bring legislation to address the issue,” Shashank Sharma a practicing lawyer at Delhi High Court tells Media India Group.

India lacks the required legislations to the Issue

Although the issue has been subject of discussion several times, so far India does not any legislative provision for menstrual leaves. The issue was discussed at in the Parliament when Congress MP Shashi Tharoor tabled a bill “Women’s Sexual, Reproductive and Menstrual Rights Bill 2018,” which had also proposed that sanitary pads should be made free for women by public authorities in their premises. The bill subsequently lapsed without any discussion or voting.

However, a couple of states, Kerala and Bihar, have passed legislations to provide for menstrual leaves. While Kerala grants menstrual leave to female students at state universities, Bihar has the provision to offer 2 days of menstrual leaves a month to working women in the state.

Food delivery app Zomato received appreciations from the people across the aisles when it introduced  menstrual leave in 2020. Zomato offers 10 days of period leave per year to its female employees.

“I believe the best form of work happens when you are allowed to be you. Most of the girls I know struggle during their periods and wish for ‘just one day’ of complete rest. I am in favour of menstrual leaves as they would give women time to rest and reenergise and be more productive the next day,’’ Varsha Srivastava who works with ROI Mantra, a digital marketing agency, tells Media India Group.

However, not every woman thinks menstrual leave is the most important issue for women in India. ‘‘Although it must be addressed, this is far from the most pressing issue confronting working women. In India, we have a diversified section of women depending on caste, class, ethnicity, culture, and religion. While any step towards empowerment of working class women is a welcome step, there are issues more important than legislation on menstruation leave, such as making legislation on empowerment of women from marginalised communities. Most of the women from marginalised communities work as daily wage labourers, domestic helpers, or in the unorganised sector. If our legislatures can pay attention on making legislation for women of marginalised section, I think it would be better step towards overall empowerment of women,’’ Meenakshi Mishra, Guest Faculty, Delhi University tells Media India Group.

Countries with provision for menstrual leaves 

On February 16, Spain became the first European country to offers workers to paid menstrual leave when the Spanish Parliament passed several laws governing sexual and reproductive rights. Spanish law now allows three days of menstrual leave a month and which can be extended to five days if they experience painful periods.

Over 75 years ago, in 1947, Japan became the first country in the world to offer menstrual leave to women. The progressive law prescribes mandatory menstrual leave if requested and extends for as long as the employee needs.

Indonesia was not too far behind. In 1948, soon after it became independent, the South East Asian nation passed a law governing menstrual leave. The rules were restructured in 2013 and under the new rules, female workers who experience menstrual pain can take two days of leave during their cycle.

South Korea has one of most stringent policies for the menstrual leaves as their legislation prescribe fines of up to 5 million Won, or USD 3,950, on employers who refuse menstrual leaves. Women are entitled to one day of unpaid menstrual leave per month which used to be paid until 2004, when South Korea changed the working week from six to five days.

In 2015, Zambia became the first African country to allow women to take a day off work during their period.  Taiwan is another country in the world to offer menstrual leaves for three days per year.



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