The Supreme Court objected to granting menstrual leave, saying it was very concerned about women's job market. If this leave is legalised, it would apparently create more difficulties in employing women in the job market, as employers would not want to hire women! Along with this, women would also apparently consider themselves more inferior. Saying this, the Supreme Court dismissed the public interest litigation regarding lawyer Shailendramani Tripathi's leave application.
But does the job market for women shrink just by granting menstrual leave? Why should women marry, why should they become mothers after marriage, why should maternity leave be given, why should childcare leave be granted – the women's job market is already shrinking with all these arguments. Even women working in cotton fields in Maharashtra have surgically removed their uteruses so they can work continuously, ensuring they never have to become mothers in their lives. Women want to work at any cost!
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Where menstrual leave exists
Many states provide menstrual leave. M R Shamsad, representing the petitioner, mentioned this as well. In 1912, in the then princely state of Cochin's government girls' schools in Tripunithura, special arrangements were made to conduct examinations later if any girl could not take her annual examination due to menstruation. Even today in Kerala, female students, teachers and other women employees get this facility in government schools, state universities and Industrial Training Institutes.
In Bihar, women government employees get two extra days of leave per month. In Odisha, women government employees up to 55 years get one extra day of leave every month. Now Karnataka has also brought such a proposal, but the Karnataka High Court has not yet allowed its implementation, raising the question of whether it would hinder women's employment. Many private organizations have arranged up to ten days of leave per year for women employees in this regard. A company of the RPG Group has said it will give two days of such leave per month, Larsen & Toubro will give one day of leave per month, and Zomato will also give ten days per year.
Abroad too, countries from Spain, Japan, South Korea, Indonesia to Zambia in Africa provide menstrual leave. But there are differing opinions about the impact of this menstrual leave. One group of researchers says it is benefiting women. Other research says that although it started in Spain in 2023, the rate of taking leave has not increased after one year. Again, data from Zambia suggests this leave is being misused.
For becoming mothers?
The public interest litigation application for menstrual leave stated, 'Only women can advance the human species because of their special ability to give birth. Women have to go through various physical and mental difficulties at different stages of their lives or motherhood – conception, miscarriage, or various complications related to maternity treatment.'
Since the prevailing notion is that girls can become mothers once they menstruate, the petitioner has woven his own web of arguments based on this concept. Even this application quoted the Endometriosis Society of India that – 25 million girls in India suffer from endometriosis annually, where menstrual pain can be so severe that a girl might even die. This argument linking leave to women's motherhood, as if the world runs because women menstruate and therefore they need leave, is also questionable to many. Is menstruation the only marker by which a woman will be identified and is motherhood her only identity?
Many girls cannot menstruate due to various physical problems, many girls cannot become mothers despite menstruating due to physical complications, and many others do not want to become mothers despite menstruating. The petitioner of this public interest litigation has placed all these girls in one category. The struggle for women's self-identity is precisely against this way of linking women only with their bodies or their ability to menstruate or become mothers. This is the petitioner's third application on this subject. I don't know what arguments he presented in the previous applications.
Leave for 94 percent?
Among women, 94 percent work in the unorganiased sector, a large portion of which is agriculture. Who will give leave there? Even the women working in the organized sector get everything from medical facilities to maternity leave. Leaving aside other various benefits, there is a huge difference between organised and unorganized sectors just in terms of leave. If women in the organized sector get another leave benefit, then that gap will only widen further.
And even for argument's sake, if women in the unorganized sector get any leave, it is usually unpaid leave – 'no work, no pay'. Would those women who live hand to mouth want that leave themselves? Rather, in January this month, the Supreme Court said in another judgment that menstrual health is a fundamental right of women. So is such an application appropriate looking at only six percent of women?
Or should the demand be that all workplaces have clean and safe toilets with adequate light, air and water, where door latches can be properly secured, there are arrangements for disposing used napkins, those dustbins are cleaned regularly, the toilet is also properly and regularly cleaned, there is sufficient distance and privacy between male and female employees' toilets so that no one can peek into others' toilets and violate privacy.
The Supreme Court has already given all these suggestions in previous judgments. Rather than leave, especially if that leave means one day's salary can be deducted, what is needed first is implementing the above arrangements for women's menstrual health and minimum comfort.
Problems with the court's thinking
Just as many women may feel uncomfortable with the argument lawyers have constructed for menstrual leave making womanhood and motherhood synonymous for all women, on the other hand, will the statement the Chief Justice of the Supreme Court made in his judgment dismissing this leave demand really benefit women?
For leave, these arguments will create an atmosphere of fear, making it seem as if women are inferior and menstruation is a very bad thing. No one will give them work. Although this appears to be a supportive step for women at first glance, we must also consider the side of the person who has to be given paid leave. Going further, the Chief Justice says that no one will employ them in government jobs or the judicial system, their careers will end. They will be told, 'You stay at home.' Especially in various competitive fields where attendance and productivity are the main criteria, women will fall behind.
His concern is that this will redraw the stereotypical image of women. Justice Jaymalya Bagchi echoes these very words, saying that even beneficial steps for any side must be evaluated by weighing constitutional rights alongside market realities. All these arguments are used in the private sector, even for not giving maternity leave – lawyers should have mentioned these arguments.
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Private organisations don't want to give women even maternity leave and dismiss them from work. In that case, this disparity in leave between organized and unorganized sectors could have been the correct argument against not giving leave. Would job opportunities really decrease? No survey has been seen about the actual situation in private organizations that provide or claim to provide menstrual leave. It is also necessary to know what women workers in those organisations that don't even give women a stool to sit on shop floors and restrict their toilet time are saying. Otherwise, it won't be known whether all these promises are just on paper.
However, even after dismissing this application, the Supreme Court said that while no mandatory legal solution is needed, if the government wants, policy discussions involving all concerned parties can certainly begin. The Labor Department, Women and Social Welfare Department, trade unions etc. can do this together. But before giving any new paid leave to anyone in the government sector, whether women or men, the private sector, which today employs most people in India, should also be considered alongside.
There is already a huge difference in benefits between government and private sectors. And perhaps by doing this, everyone together has destroyed the government sector so that the next generation won't even know what the government sector is.
