Supreme Court Apprehensive About Employers Shunning Women If Menstrual Leave Is Mandated, Asks Centre To Examine

The Supreme Court on Monday (July 8) asked the Union to consult all stakeholders on the question of having a menstrual leave policy for working women. The Court also expressed apprehension that such a policy may not be welcomed by the employers and create troubles for women seeking jobs.

The bench led by CJI DY Chandrachud comprising Justice JB Pardiwala and Manoj Misra was hearing a petition which sought menstrual leave for female students and working women across India.

The CJI opined that while introducing such a leave policy may encourage women to be at the forefront of the workplace, one had to also consider the flip side- employers not agreeing to hire women at the cost of compromising their workplace productivity.

"There are two very different perspectives, (1) having that menstrual leave policy encourages the women to be part of the workforce; the other perspective is, that mandating such policies will actually impose sort of a bar on women being employed because the employer will then shun women in the workplace. We do not want that to happen also."

Stressing the above apprehension, the CJI said that ultimately the matter would fall within the policy domain as the employer would also be a stakeholder in this.

"This whole issue is a purely policy issue for employers to consider especially at the governmental level because when you try to do to protect women,it will actually work to their disadvantage."

The Counsel for the petitioner however contended the policy for menstrual leave has in fact been adopted by several private employers. Globally also Asian countries like Japan and Indonesia have accepted menstrual leave policies.

It may be noted that the United Kingdom, Wales, Spain, Zambia, China, Taiwan and South Korea too have introduced menstrual leave policies for women in the workplace.

A similar petition was filed by the Petitioner in 2023 as well. There the bench of Chief Justice DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala refused to interfere in the matter and granted liberty to the petitioner to submit a representation to the Union Ministry of Women and Child Development. The petitioner however informed that no response was given by the Ministry yet.

The bench then granted liberty to the petitioner to again make a representation before the Secretary in the Union Ministry of Women and Child Development who shall hold a joint stakeholder meeting to consider if such a policy formulation was possible.

The court also clarified that the order would not hinder State Governments from making decisions for the betterment of the employees.

"We permit the petitioner to move the Secretary in the Union Ministry of Women and Child Development once again with a copy to learned ASG Aishwarya Bhati who has assisted the Court in other matters pertaining to women in the workplace. We request the Secretary, the Union Ministry of Women and Child Development to look into the matter at a policy level and after due consultation with all the stakeholders at the Union and the State level consider whether it would be appropriate to formulate a model policy.

We clarify that this does not stand in the way of the State govt to take appropriate decisions bearing in mind the welfare of the concerned employees"

Case Details : SHAILENDRA MANI TRIPATHI VS. UNION OF INDIA W.P.(C) No. 327/2024