Supreme Court Refuses To Entertain Plea Seeking Menstrual Leave, Says Matter Falls In Policy Domain

The Supreme Court on Friday refused to entertain a PIL seeking menstrual leave for female students and working women across India stating that the matter fell within the domain of policy. The petition filed by Advocate Shailendra Mani Tripathi was heard by a bench comprising Chief Justice DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala. 

During the hearing, an intervenor submitted that allowing menstrual leave might discourage employers from employing women. On this submission, CJI DY Chandrachud also remarked that it was true that if employers were compelled to grant menstrual leave, it may disincentivize them from hiring women at all.

The bench also opined that the petitioner could file a representation before the Union Ministry of Women & Child Development. CJI DY Chandrachud, while dictating the order said–

"Having regard to the policy dimension in the case, the petitioner may approach the Women and Child Ministry to file a representation." 

The petition argued –

"It is accordingly a violation of Article 14 inasmuch as this Act differentiates women in the name of federalism and state policies. Despite that women suffer from similar physiological and health issues during their menstrual cycles, they are 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."

The petition also highlighted that in 2018, Dr. Shashi Tharoor had introduced the Women's Sexual, Reproductive and Menstrual Rights Bill which proposed that sanitary pads should be made freely available for women by public authorities on their premises. Further the other related Bill, Menstruation Benefits Bill, 2017 was represented in 2022 on the first day of the Budget Session, but the Legislative Assembly disregarded it as it was an ‘unclean’ topic. As per the petition, this portrays a lack of legislative will to move forward with the concept of menstrual pain leave.

"The United Kingdom, Wales, China, Japan, Taiwan, Indonesia, South Korea, Spain, and Zambia are already providing with menstrual pain leave in one form or another...Delhi High Court directed center and Delhi Government to consider PIL seeking menstrual leave as representation. Union Minister Smt. Smriti Irani in a written reply in Lok Sabha said that the Central Civil Service (Leave) Rules 1972 do not have any provisions for menstrual leave and presently there," the petition remarked.

Case Title: Shailendra Mani Tripathi v. UoI And Ors. WP(C) No. 172/2023 

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