INTRODUCTION
The Apex Court by an order dated 24.02.2023 in Shailendra Mani Tripathi v Union of India while considering forming a policy for menstrual leave held that this move having policy dimensions must be dealt with by the legislature, i.e., The Union Ministry of Women and Child Development. This comes as a further dent to the formulation of menstrual leave as a concept in organizations in India today. While the term menstrual leave is well defined, the Menstrual Benefits Bill, 2017 while enunciating on the reason for providing leave holds that menstrual pain/period pain can be “as bad as having a heart attack”. Supplementarily, the American College of Obstetricians and Gynecologists state that such pain is a common phenomenon amongst women who experience this for a minimum of two days every month with the pain being so severe for some that they become incapable to perform normal activities for this period. The experience being extremely painful and uncomfortable, providing leave is axiomatic so that women use this time to manage symptoms such as pain, cramps and fatigue.
LEGISLATIVE OUTLOOK TO MENSTRUAL LEAVE
Currently, India does not have a law which deals with the concept of menstrual leave. While individual efforts by various organizations such as Zomato, Byjus, Magzter, etc. in providing leave to their female force have been monumental, a consolidated law has not been passed by the legislature to make this leave mandatory hence allowing it to be on the whims and fancies of the organization. While various novel attempts have been made in the form of the Menstrual Benefits Bill, 2017, and Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018 these have not found the status of law as of yet. The Menstrual Benefits Bill, of 2017 was a ground-breaking legislation and should have been implemented due to the below mentioned factors:
The bill while defining “woman” encompasses a large group including the ones studying in Class VIII onwards to working women in any sort of establishment around the country.
Many critiques have been of the considered opinion that taking leave on the basis of menstruation would adversely affect a woman’s career. They have gone on to say that employers would be disincentivized to hire women due to this monthly break. The bill makes an attempt to address this in the proviso to Section 4 by stating that “if a woman employee working in an establishment undergoing menstruation opts to work instead of taking leave, she shall be paid overtime allowance at such rate and in such manner as prescribed.” The bill hence makes leave a choice to be exercised by the woman and not something which is imposed by the company.
Further, there may occur scenarios where woman continue working in the organization during their menstrual cycle but may need a break during working hours. The bill provides for the same in Section 5 stating that “every woman employee working in the establishment during her menstruation shall be entitled to 30 minutes of rest period twice a day for not more than four days during menstruation in a month.”
Lastly, the bill provides for an important consideration in Section 7 whereby it mandates all organizations to intimate in writing to the woman joining about her benefits, especially with reference to menstrual leave. The bill ends with a deterrent for not giving leave to women during her cycle which is extremely important and shall be adjudicated by the Internal Complaints Committee (“ICC”).
FOREIGN JURISDICTIONS ON MENSTRUAL LEAVE
There are several countries around the world which have policies in place for providing leave to menstruating women. The country to begin this endeavor was Japan in 1947, where employers are mandated to give leave to a woman employee during this period. In Indonesia, women are required to intimate their employer if they face any menstrual pain which would entitle them to two days leave during the month. South Korea, Taiwan, and Zambia provide for 3 days in a month, 3 days in a year, and 1 day in a month respectively. Most recently, Spain became the first country in Europe to provide for menstrual leave where women can avail 3 to 5 days of leave on production of a doctor’s note and the pay for this period would be compensated for by the state.
THE CURIOUS CASE OF BIHAR
Bihar in 1992 introduced a policy that granted female employees two days paid leave every month for menstruation-related reasons. The policy was aimed at addressing the health and well-being of female employees, as well as reducing absenteeism. Additionally, this was done to increase productivity. While there are critiques who argue that such leaves would lead to employers discriminating against male and female employees, there is a popular notion which appears to be logical in saying that once a woman has been provided with sufficient rest during her menstruation cycle, she would be more productive since she is well rested.
The women in Bihar who were part of protests which demanded leave stated that this was not a god-like change that was suddenly introduced by the state government but was a result of a series of protests spanned over 2-3 months demanding monthly leave. So, the question that remains is this “should the 21st century see women in India sitting on protests for something as basic as menstrual leave?”
SUGGESTIONS AND RECOMMENDATIONS
The answer to any prudent person would be an emphatic “no.” That being said, there are a few ingredients that would need to be part of the statutory law when drafting anything with respect to menstrual leave. These suggestions are over and above, the statutory need to provide period leave to women:
a) The law must ensure to mention as done in the bill of 2017 that a woman may not necessarily avail of the benefit of period leave and if she does not, she must be given overtime by the establishment for those 3 days. Further and more importantly, some women are not comfortable coming to their establishment during this period, and hence “work” during this period must also include work from home which provides a woman some respite by availing the benefit of home.
b) In some law firms, women during this period are given an option of easy days at work which simply means that they won’t be overburdened with work. The legislation to address this may provide for a particular time period only between which the woman would be available so that she could while being at home or office get enough rest.
c) The legislation must provide for days of leave a woman is entitled to during her cycle but must also not make the same compulsory since there are organizations in India which have gone beyond the realm of 2-3 days.
d) Lastly, a vending machine that provides free of cost sanitary pads and basic medicines must be installed at any establishment having more than 10 employees.
e) These steps as mentioned must be affected in a document as drafted by the ICC of the organization/ establishment.
CONCLUSION
While this blog and various other pieces of literature have advocated fiercely for providing menstrual leave, many have missed sight of who passes a law. The parliament consists of a disproportionate amount of men as compared to women and hence the primary task must be to form a subcommittee in both houses of parliament consisting of only women aided by doctors and lawyers who are also female to put together a draft law on menstruation and a committee report on its urgent need so that when the law is circulated in parliament, the purpose and need to pass the law is empathetically clear amongst parliamentarians.
This post is authored by Nikhilesh Kaundilya, a student at Symbiosis Law School Pune.
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