On 14 December, 2023, Union Minister Ms. Smriti Irani while responding to a question concerning the issue of granting a fixed number of compulsory leaves to female employees, expressed her personal opinion that, “… menstrual cycle is not a handicap.” Her statement has sparked a nationwide discussion on the reproductive rights and health benefits constitutionally granted to women. Ms. Irani shunned the notion on the grounds that it may lead to denial of equal opportunities for working women, which is against the spirit of fostering inclusivity of more women in the workforce of the nation. The issue has several socio-political dimensions; however this article aims to analyze the legal issues pertinent to the same. Although the constitutional context of the issue is now well addressed, the issue remains deeply unexplored on other cardinal facets of law, the issue still sits deeply rooted. The authors through this article will underpin the current violation of women’s fundamental rights and further delve into the realms of the pertinent labour law, provide a comparative analysis of the global scenario and the recent bill on menstrual leave policy, and lastly suggest policy recommendations for prospective legislation addressing the issue appropriately.
The Current Legal Framework
The Fundamental Rights include among other rights, the right to equality, life and personal liberty, and to work and live with dignity. These have been enshrined in Articles 14, 15, and 21 of the Indian Constitution. The concept of a paid menstrual leave policy finds its genesis in these Articles and acts as an affirmative step to ensure that women can enjoy these Fundamental Rights in a meaningful manner.
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, 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. In Anjali Roy v. State of West Bengal, the court further held that all differentiation would not amount to discrimination if it is made owing to natural differences in persons.
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.
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.
The Right of Women to Menstrual Leave and Free Access to Menstrual Products Bill of 2022 (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. 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, the Court further held that the ‘Right to Health’ would fall under the ambit of Article 21, thus, 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.
The Equal Remuneration Act, of 1976 (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 Section 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. 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.
Comparative Analysis with Other Nations
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 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.
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.
Since menstruation is a biological phenomenon that occurs periodically after the age of puberty, which is a time most often spent in school years, providing menstruating girls with menstrual leaves and related advantages would be better implemented in the schooling years itself. The authors suggest starting with the simplest implementation of the same, which can be through government-mandated menstrual leaves at the school level for menstruating girls which can be compensated with extra study sessions, and optional extra hours for understanding concepts taught on days when the leave provision was availed. This would allow the youth which is presently in their school years to understand and be accustomed to the idea of menstrual leaves in practice. This would further help in transitioning such a culture to the workplace in the form of paid menstrual leaves, albeit with some modifications in light of the interests of the employers.
The authors also suggest that the government make adequate safeguards for menstruating women in the unorganized sector, by for example, making provisions for paid menstrual leaves, wherein a menstruating female working in the unorganized sector, can avail three days of leave and she will be paid the average salary calculated for the profession she is involved in, with the only prerequisite for the claim being, that she has availed those three days of leave and doesn’t work on those days. Protecting the rights of the women in the unorganized sector is crucial to ensure they’re not exploited by their employers.
The biggest legal impediment to the implementation of a paid menstrual leave policy is the anticipated discrimination against menstruating women by employers. However, we must take into consideration that all the provisions of the law work in continuation and consonance with each other and not separately. When the lack of a paid menstrual leave policy is presently violating the fundamental rights of the women, the same cannot be triumphed by the apprehension of discrimination against female employees. The government while devising a comprehensive menstrual leave policy, must ensure that the principles enshrined in Articles 14, 15, and 21 of the Constitution of India and corresponding labour laws, are adhered to, together to give it the intended power and effect.
This article was authored by Kavya Mittal, Assistant Editor and Naren Maran, Assistant Editor at RSRR. This blog is a part of the RSRR Editor’s Column Series.