New Delhi: The Supreme Court Friday refused to entertain a public interest litigation (PIL) seeking a direction to all the states to frame rules for menstrual pain leave for female students and working women at their respective workplaces, observing that the issue falls under the policy domain of the government.
A bench, headed by Chief Justice DY Chandrachud, disposed of the petition and granted liberty to the PIL petitioner to approach the Union Ministry of Women and Child Development with a representation seeking a policy decision on the issue.
The petition was filed by Advocate Shailendra Mani Tripathi 10 January seeking a direction to all states to make provisions for menstrual pain leaves to students and working women at their respective workplaces and comply with section 14 of the Maternity Benefit Act 1961.
During the brief hearing, the bench, also comprising Justice PS Narasimha and Justice JB Pardiwala, took note of the submissions of a law student, opposing the PIL, that if employers are compelled to grant menstrual pain leaves to women employees every month then it may dis-incentivise them from hiring them.
Disappointed with the court’s decision, Mrinal Vallari, a journalist working with a private company, told ThePrint, “In the war of gender, the court should be liberal before rejecting such things.”
She said, “If the court is avoiding these things today, then women will likely avoid having children in future.”
Shiv Pandey, who works with a private company, said “The Supreme Court has taken a practical approach, which is somewhere accurate. Companies will get involved in finding a way to avoid these provisions.”
Feminist activist Kavita Krishnan said “Whenever the government makes any provision, it makes it keeping only the male worker in mind. Ideally it should not only consider women workers while making such provisions, but also transgenders or anyone who menstruates,” she added.
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Leave policy in other countries
Menstrual leave, also known as period leave, is a workplace policy that allows employees to take time off from work when they are experiencing menstrual pain or discomfort. While the policy is not widespread, it is gaining traction in some countries. ThePrint Explains menstrual leave policies across the world.
The Spanish parliament on 16 February, approved a legislation that made Spain the first country in Europe to entitle workers to paid menstrual leave. The legislature also expanded abortion and transgender rights for teenagers in the traditionally Catholic country, this historic decision in faraway Spain should inspire the judgement of the Supreme Court of India.
Apart from this, in Japan women are allowed to take one to three days off each month for menstrual pain. While South Korea allows one day off a month for menstrual pain, Taiwan gives three days off per year and Indonesia two days off a month.
In 2016, Sweden became the first country in the world to introduce a paid menstrual leave policy. Under this policy, women who experience severe menstrual cramps or other menstrual-related symptoms are entitled to take time off work without loss of pay.
In 2017, Italy became the first European country to introduce menstrual leave. Women are allowed to take three days off per month. In 2015, Zambia introduced menstrual leave for female workers. Women are allowed to take one day off per month. In 2019, the Philippines introduced a law allowing female workers to take up to two days of menstrual leave a month.
However, most other European countries, including France, have not yet introduced similar legislation. Some companies in these countries may have their own policies in place to provide menstrual leave, but it is not a legal requirement. It is worth noting that there is an ongoing debate and discussion around the topic of menstrual leave, and some experts argue that it could be a step towards greater gender equality in the workplace.
In addition, several companies in the United States have voluntarily implemented menstrual leave policies for their employees, including Nike and Coexist, a social enterprise based in the United Kingdom, with a branch office in the US.
It’s worth noting that not all countries have menstrual leave policies, and the policies that do exist vary widely in terms of the number of days of leave allowed, whether the policy is mandatory or voluntary, and whether it applies to all female employees or only those who experience severe menstrual pain.
In India
In the historic case of S. L. Bhagwati vs. Union of India and Ors., in 1992, the Supreme Court argued in favour of women receiving menstrual leave to take care of their health and families. Women should have had this fundamental right since 1992, but so many companies still do not provide it.
In 1992, the Bihar government (then headed by Lalu Prasad Yadav) introduced a policy that granted female employees two days of paid leave every month for menstruation-related reasons. This policy was aimed at addressing the health and well-being of female employees, as well as reducing absenteeism and improving productivity.
The policy was not without controversy. While a section of people argued that it reinforced gender stereotypes and could be used as an excuse for discrimination against female employees, others countered that it was a step towards recognizing and addressing the specific health needs of female employees.
On 8 March 2022, an action plan for Menstrual Hygiene Management (MHM) was launched for the first time in Purnea district of Bihar. NITI Aayog has approved the proposal for MHM-friendly toilets and awareness kits for 200 government high schools. We have also roped in some NGOs and UNICEF, stated Rahul Kumar, former district magistrate of Purnea, in his article.
Kumar, also CEO OF Jeevika, a government programme for rural development, told ThePrint, ”Women employees should get menstrual leave, because both are equal workforce.” He added “paternity leave should also be implemented everywhere.”
Following the footsteps of Bihar, some other states like Kerala have also introduced similar policies where female employees are entitled to one day of menstrual leave per month.
The Higher Education department this month issued an order to implement menstrual and maternity leaves for students in universities that function under the department. Girl students will benefit through a lowering of minimum attendance required to appear for examination to 73% (from the existing 75%). Women students aged above 18 years will also be able to avail maternity leave for up to 60 days.
Companies that have implemented menstrual leave policies in India include Culture Machine, a Mumbai-based digital media company, Gozoop, a digital marketing agency, media company Mathrubhumi and food delivery platforms Zomato and Swiggy and Byjus.
In March 2021, the Delhi government announced that it would provide menstrual leave to all its female employees. The leave can be taken on any day of their menstrual cycle, and it will not be deducted from their annual leave entitlement.
In July 2021, the Uttar Pradesh government announced that female employees in the state would be entitled to one day of menstrual leave per month. A month later, the Maharashtra government made a similar announcement.
PIL cites CCS rules
According to the petition, Central Civil Services (CCS) leave rules have made provisions like child care leave (CCL) for women for a period of 730 days during their entire service period to take care of their first two children till they attain the age of 18 years. This rule has also given 15 days of paternity leave to male employees to take care of their child, which is another great step for a welfare state in recognising the rights and problems of working women, it pointed out.
The petition cites a study by the University College London as per which the amount of pain a female goes through while menstruating is equivalent to the pain a person experiences during a heart attack. Such pain reduces an employee’s productivity and affects work.
“In spite of making all the above-mentioned provisions in the law to take care of women in difficult stages of her maternity, the very first stage of the maternity, the menstrual period has been knowingly or unknowingly ignored by the society, the legislature and other stakeholders in the society, except a few organisations and state governments. This raises a question on the intent of the whole society with regard to recognising and respecting women’s rights, especially during their difficult times related to different stages of maternity,” the petition said.
What is section 14?
Section 14 of the Maternity Benefit Act, 1961, deals with the provision of nursing breaks for new mothers in the workplace. It stipulates that every woman who returns to work after the delivery of her child shall be entitled to two breaks of half an hour each per day for nursing her child, until the child attains the age of 15 months. These breaks are in addition to the intervals for rest allowed to her.
Many petitioners in the past have argued that menstrual health issues are not given adequate recognition and support in the workplace. They argue that menstrual leave would help to address this gap and promote greater awareness of menstrual health issues.
They also argue that providing menstrual leave would help to promote gender equality in the workplace by recognizing the unique health needs of women.
The PIL also highlights 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 in 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 Lok Sabha disregarded it as it was an ‘unclean’ topic, the petition said.
Women need leave from work during the menstrual cycle for various reasons including painful cramping, heavy bleeding, fatigue and hormone related issues like migraine, anxiety and depression.
Providing menstrual leave can help companies promote gender equality and support the well-being of their female employees. It can also help reduce stigma and improve understanding of women’s health issues in the workplace, the petition pointed out.
(Edited by Geethalakshmi Ramanathan)
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