Lettering Menstrual Leave In the Constitution

Menstrual pain becomes a big hurdle in the day-to-day working of a woman. For some, the pain may be negligent but for others, it can be as painful as a ‘heart attack’ Around 80% of women experience period pain at some stage in their lifetime. This pain not only affects their physical state but also has severe implications on their mental health, thereby affecting their productivity at work or in school.

Menstrual leaves allow individuals experiencing menstruation to take a break from work or school to rest and give their bodies adequate time and space to relax and be healthy. This mechanism not only comforts the overall well-being of women but also improves their post-menstruation performance.

Recently, a Public InterestLitigation has been filed in the Supreme Court seeking Menstrual Leave for female students and working women in India, by Advocate Shailendra Mani Tripathi.

Moreover, Dr R. Bindu, the Minister for Higher Education and Social Justice in Kerala, recently declared "Taking into consideration the mental and physical difficulties faced by female students during menstruation, necessary steps will be taken to implement menstrual leave in all universities.”

This article examines the need to grant menstrual pain leaves and the judicial trajectory over the years on this issue.

The Need To Have Period Leaves

According to a study published in the Journal of Obstetricsand Gynecology of India, almost 90% of women in India experience some form of menstrual pain. A 2017 study by researchers from various medical institutions and research foundations showed that respondents reported an average productivity loss of 33 per cent due to menstruation-related presenteeism, resulting in a mean loss of 8.9 days per year.

Menstrual pain can significantly affect a person's ability to work by making it difficult to concentrate and perform tasks.. As per a study, 20% of women’s work is affected due to period pain.

Laws on period leaves will ensure that individuals who experience menstrual pain can take time off work or school without risking their job or academic performance.

A step like menstruation pain leave will not only reduce the stigma but would also bring the gravity of this problem to light. Without laws in place, it is possible that some employers or schools may not be willing to provide menstrual leave, or may not take it seriously.

Period Leaves In Other Countries

Spain is on the way to be the frontrunner in the race for women’s menstrual rights as it is going to be the first western country to implement such a measure. Indonesia provides two leaves per month as menstrual leaves are not counted as additional leaves.

While Taiwan gives women three days of "menstrual leave" per year, which will not be calculated toward the 30 days of "common sick leave".

Japan had been the longest runner in this race as they first implemented such a measure in 1947, known as seirikyuuka (physiological leave)

We also see African countries like Zambia playing their role in the same by implementing measures in which women are legally entitled to take a day off each month due to their menstrual leave policy.

To allow women greater freedom and a better working environment, Coexist, a Bristolcommunity interest company, developed a "period policy."

Nike has granted paid menstrual leave to its staff since 2007. Indian companies such as Ivipanan, Zomato, Byju’s, Swiggy, Mathrubhumi, Magzter, Industry, ARC, FlyMyBiz and Gozoop have offered paid menstruation leaves.

Judicial Approaches Over The Years

It can be argued that a special provision of menstruation pain leaves exclusive to women can be discriminatory in nature; however, it needs to be understood the Constitution of India envisages the protective discrimination principle under Article 14 that among equals the law should be equal and equally administered or simply put, the like should be treated like. Thus, women not being alike to men in this aspect shall have the right to be treated differently. Article 15(3) specifically states that nothing in Article 15 shall prevent the state from making special provisions for women and children.

Articles 14 and 15 provide for reasonable classification which allows special laws for particular classes of society. The Supreme Court of India observed that for a classification to pass the reasonability test, the classification must be founded on an intelligible differentia which distinguishes those that are grouped from others and the differentia must have a rational relation to the object sought to be achieved by the provision. Here in the present context, the gender classification is based on intelligible differentia since men and women differ in this aspect as it is the women, and not men, who experience menstruation s every month; and the main object of this provision is to not let women compromise their well being or work efficiency owing to the problems caused by menstruation. Thus providing menstruation pain forms a reasonable nexus between the classification made or differentia and the object of the provision.

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.”

The Supreme Court in Francis Coralie Mullin vs The Administrator,Union Territory of Delhi held that the expression “life” in Article 21 means a life with human dignity and not mere survival or animal existence. Health and well-being are inherent parts of a dignified life.

Bihar and Kerala are the only two states that have government-approved provisions for menstrual leaves. Judiciary has always questioned social structures that treat women as inferior through its progressive judgements as in the Sabarimala judgment, J. Chandrachud observed “ Notions of “purity and pollution”, which stigmatized individuals, can have no place in a constitutional regime.”. In the Puttaswamy judgment right to privacy was acknowledged.

Considering menstrual leaves from the lens of dignity and equality enables us to theoretically justify how the idea fits in our Constitutional setup.

Laws In Place

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.

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.

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.

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 there exist certain biological differences between men and women and the law needs to be accommodative regarding that. It needs to be understood that such provision is a question of equality which has been ignored all this while.

Furthermore, the laws should ensure that these leaves are not misused. If period leaves are not feasible right now in certain sectors, a comfortable working environment can be provided. Work from home option can also be explored. The government can reduce the taxes on sanitary napkins and make them affordable to women.

It is high time we recognize the devastating impact that menstrual pain can have and take steps to alleviate it, whether through legislation, education or medical advances.

The author is a student at National Law University, Jodhpur. Views are personal.