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Introduction:

The Supreme Court on 24^th February, 2023 refused to entertain a PIL seeking menstrual pain leave for female students and working women across the country. The apex court say there are different “dimensions” to this and women might be stereotyped at their workplaces and the employers might refrain from hiring women which may be followed by a spark of tacit discrimination.

A three-judge Bench led by Chief Justice of India D.Y. Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala asked the petitioner to approach the Union Ministry of Women and Child Development Ministry to frame a policy.The court was hearing a petition filed by Shailendra Mani Tripathi, represented by advocate Vishal Tiwari, demanding a set of rules implied by all the states across India to provide all the females menstruating, with a menstrual leave. The plea sought effective implementation of Section 14 of the Maternity Benefit Act, which deals with appointment of inspectors and says appropriate governments may appoint such officers and may define the local limits of jurisdiction within which they shall exercise their functions under this law.

Constitutional Invalidity Of Menstrual Leave:

The plea mentioned some companies like Swiggy, Zomato, Byju’s and iVIPANAN where they provide paid period leaves. Citing the precedence, the PIL stated that Meghalaya had issued a notification in 2014 for the appointment of such officers and that Bihar was the only state in India that provided special menstrual pain leave as part of a 1992 policy. This period leave is also termed as violative of Article 14 of the Indian Constitution as women suffer from similar physiological and health issues during their menstrual cycles; they are being treated differently in different states of India. However, women, must be treated equally and shall be conferred with equal rights all across the India; otherwise, it violates Article 14 of the Constitution of India i.e.  Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

Status Of Different Countries:

The plea said countries like the United Kingdom, China, Wales, Japan, Taiwan, Indonesia, South Korea, Spain and Zambia were already providing menstrual pain leave in one form or the other. But, this isn’t the case in India; an average Indian workplace has approx. 25% of female employees if leave would be sanctioned to each female employee once she starts menstruation this can affect the productivity of the workplace and people might restrain to hire women employees or might stall their promotions this will promote workplace based discrimination and more pay gap between men and women and would assist in widening the gap which women have been trying to fill since eternity.

Court’s Judgement On Menstrual Leave:

The bench also contended 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 petitioner also contended that there were many different bills introduced in the parliament for eg. Women’s Sexual, Reproductive and Menstrual Rights Bill which proposed that sanitary napkins to be freely available to everyone at their premises, Menstruation Benefits Bill, 2017 was represented in 2022 in the budget session but was rejected claiming it to be an ‘unclean topic’. Menstruation is still considered to be a ‘taboo’ in India people are not well aware of it and don’t want to talk about it in public. In this male dominated society with ingrained patriarchy no one could understand the plight of women to go to work burdened with her period cramps and heavy bleeding, the period leave is not only one step towards feminism but also towards humanity, just like maternal leave a women should also be allowed to take menstrual leave which constitutes her rights, the provisions of law under the 1961 Act are one of the “greatest steps” taken by Parliament to recognize and respect motherhood and maternity of working women.

“Definitely even today also, in several organisations, including government organisations, these provisions are not being implemented in their true spirit and with the same legislative intent with which it was enacted but at the same time one of the biggest aspects of this whole issue or one of the very basic problems related to maternity which are faced by every woman has been completely ignored by the legislature in this very good law and also by the executive while making rules, specifically the leave rules,” the petition had said.

It’s Association with Different laws:

The Central civil services (CCS) has provision which allow women a leave for 730 days during her entire service period to take care of her first two children till they attain the age of 18 years. This rule has also provided paternity leave of 15 days to their male employees to take of their new born child and share equal responsibilities with the mother who has already been through a lot.

“In spite of making all the above mentioned provisions in 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 society, the legislature and other stakeholders in society except few organisations and state governments,” the petitioner said.

“This is a policy matter so we are not dealing with this…Having regard to the policy views, it would be appropriate if the petitioner approaches the Union Ministry of Women and Child Development. The petition is accordingly disposed of,” said the bench which also comprised justices P S Narasimha and J B Pardiwala. Union minister of women and child development, Smriti Irani contended that the Central Civil Service (Leave) Rules 1972 do not have any provisions for menstrual leave.

Conclusion:

This is a long battle for the petitioners against the system, patriarchy; there are always two sides of a coin, there are both pros and cons of menstrual leave, the Centre must devise necessary policies for the sake of women of our country as it is not just a matter of personal comfort , it is a pivotal issues which should be considered as pivotal as any other issues in the country.

ARTICLE BY PRIME LEGAL.