Supreme Court rejects call for paid menstrual leave in India

The Public Interest Litigation (PIL), which was filed by lawyer Shailendra Mani Tripathi on behalf of a Delhi resident, Shailendra Mani Tripathi, argued that the Maternity Benefit Act 1961 required employers to grant a certain amount of paid leave to female employees during pregnancy, in case of miscarriage and in case of medical complications arising from pregnancy.

Photograph iStock credit Dishant_S

They argued that although the Act makes provisions to cover almost all the problems faced by women around maternity, the State governments have failed to comply with the spirit and letter of the law by failing to ensure that women also have a legal right to paid menstrual leave, the Hindustan Times reported.   

The PIL called for the introduction in all States of a new Right of Women to Menstrual Leave and Free Access to Menstrual Health Products Bill, 2022. This would provide three days paid leave for women and transwomen employees during the period of menstruation, and extend the benefit to students.

However, the Supreme Court rejected the application, ruling that the issue is a policy matter for the Union government to decide, not the courts. The judges did however grant permission for the PIL petitioner to make a representation to the Union Ministry of Women and Child Development requesting a policy decision on the issue.

While hearing the PIL, the judges agreed with an intervention by a law student named Anjale Patel, arguing that the introduction of a legal right to paid menstrual leave could actually backfire as it could discourage employers from hiring more women. The top court also observed that the issue has several dimensions and there is need to formulate a policy.

“The student says that is what employers may do in actual practice,” said Chief Justice Chandrachud, according to The Hindu newspaper. “There are different dimensions to the issue, we will leave it to the policy makers. Let them first formulate a policy, we will consider it then.”

Many social scientists and activists share the fear that Patel expressed in her caveat. These feminists think that the possible introduction of paid menstrual leave might serve as an excuse for employers to not hire women. This is particularly concerning given India’s low rate of female labour force participation, which was 30.4 per cent in 1990, according to the World Bank, before dropping to 19.23 per cent in 2021.

In February 2023, Spain became the first European country to provide three to five days of menstrual leave. Females who experience disabling periods can apply for time off after obtaining a supporting note from a medical professional. Japan, Indonesia, South Korea, Taiwan, Vietnam and Zambia have also adopted menstrual leave policies, although the nature and scope of the policies differ from country-to-country.

However, menstrual leave is not an entirely alien concept in India. For instance, a school in the southern state of Kerala has been granting its students menstrual leave since 1912. Also, the state of Bihar has been allowing two days special menstrual paid leave to women in the workforce since 1992, and Kerala agreed menstrual leave for women university students in January 2023. Recently, some technology start-up companies in India, namely Zomato, Byju’s and Swiggy, have offered paid period leave to staff.

“In India and globally, there is a need to transform the culture, system, norms and perception that can support menstrual health and wellbeing,” said Ashutosh Singh, a doctoral researcher at the Centre of Social Medicine and Community Health at Jawaharlal Nehru University in New Delhi.

Shailendra Mani Tripathi, the lawyer who pursued the PIL, said: “For me it felt the right time we put forward this issue. Looking around, and in my own house, I really thought the patriarchal approach and taboo around menstruation must come to an end. This is not an issue which is concerning women, but is a pain in society.”

Meanwhile, senior Supreme Court advocate Indira Jaising said that a law along these proposed lines is not a far-fetched dream, as India has come a long way from a time when lawyers could not even bring themselves to say the word menstruate in court.