Why paid menstrual leave should be a reality in India: Legal experts weigh in

According to the American College of Obstetricians and Gynaecologists, period pain, or dysmenorrhea, is a common phenomenon. More than half of menstruating women experience pain for one or two days every month. For some, the pain is so severe that they are unable to perform normal activities for several days.

On February 16, 2023, Spain became the first European country to pass a paid menstrual leave law, which gives working women experiencing painful periods the right to three days of paid menstrual leave, which may be extended up to five days.

Japan was one of the first countries to introduce menstrual leave as an industrial right in 1947. Similar policies are also in place in Taiwan, Indonesia, South Korea and Zambia.

As the representation of women in the workforce in our country steadily rises, the question is, how close is India to having a law on similar lines?

Even as the courts have been at the forefront of safeguarding sexual and reproductive rights of women and others over the past few years, the Supreme Court on February 24 refused to entertain a public interest litigation (PIL) calling for the introduction of menstrual pain leave in the country. The Court opined that since there is a policy dimension surrounding the issue, the onus was on the Central government to make such a scheme a reality.

Advocate Shailendra Mani Tripathi, who had filed the petition, was hopeful that the apex court would set the wheels in motion. Revealing his intent behind filing the plea, he 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.”

This was not the first time the issue was raised before the courts. In 2020, the Delhi High Court had similarly directed the Central and Delhi governments to consider as a representation, a petition seeking paid menstrual leave for women government employees - including daily wage and contractual workers.

Regardless of such directions, there seems to be little or no action taken at the Central level to introduce a country-wide framework to facilitate paid menstrual leave.

While this is the case, a couple of Indian states already have such policies in place.

As far back as in 1992, the Bihar government offered women in the workforce two days of menstrual leave a month.

On January 19, 2023, the Kerala government issued an order granting menstrual leave for students in all state-run higher education institutions.

In a bid to introduce a law for period leave at the Central level, Ninong Ering, a Member of Parliament from Arunachal Pradesh, introduced the Menstrual Benefits Bill, 2017 which proposes two days of menstrual leave every month to both public and private employees. However, that Bill is yet to see the light of day. The Congress leader had again presented the Bill in 2022 on the first day of the Budget Session of the Arunachal Pradesh Legislative Assembly. However, the same was not considered.

With a view to cater to the needs of their workforce, many of whom are women, corporate India has introduced some progressive policies of their own volition.

In 2017, two Mumbai-based companies - Gozoop and Culture Machine - became the first private companies to introduce period leave in India.

In 2020, Zomato introduced menstrual leave for up to ten days a year for its women and transgender employees.

Since then, other private companies like Swiggy and Byju’s have also introduced similar policies.

Gurugram-based Public Relations & Advocacy Group (PRAG) recently offered free consultation to all organizations who commit or announce the implementation of paid menstrual leave for their female employees. PRAG is also the first PR and communication firm to give paid menstrual leave to its employees. 

These examples show that until governments enact laws mandating menstrual leave, the onus lies on workplaces to cater to the needs of their women employees.

So how does it work in the legal sector?

Bar & Bench spoke to women in the legal profession for insights on why paid menstrual leave should be a reality, and how they address the issue in their workplaces.

Indira Jaising, Senior Advocate, Supreme Court

Jaising feels that a law on these lines is not a far-fetched dream, as we have come a long way from a time when lawyers could not bring themselves to say the word menstruate in court.

"During the hearing of the Sabarimala case, I argued putting a woman out during menstruation was a form of “ untouchability.“ At least one judge - Justice DY Chandrachud accepted the argument."

In that case, Jaising was representing Monica Arora, who founded the group Happy to Bleed, a name which was intended to dispel the stigma over a normal physiological phenomenon.

However, she worries that the introduction of such a policy could disincentivize employers from hiring women, a concern that even the Supreme Court highlighted when it dismissed the PIL on Friday.

"It must be accompanied with strict no victimisation conditions," she added.

Pallavi Pratap, Advocate-on-Record, Supreme Court

The inequity between the sexes perpetuated by mother nature is quite evident, said Pratap.

"Earlier, the fight for women was on taboos that came with menstruation, but now the landscape has shifted to menstruation and the leave required during the ‘difficult’ days," she said.

Pratap added that with various lifestyle changes, pre-menstrual syndrome (PMS) affects all women.

"Participation of women has increased in the workplace but even to this day, the discomfort and limited or no access to clean and hygienic alternatives act as roadblocks for women. It is difficult for a woman to open up to their male colleagues for fear of being judged as ‘PMSing,’ and more importantly, to be able to run around at the equal pace as their male counterparts."

Menstrual leave for one or two days and also access to affordable hygienic alternatives will certainly bring women closer to a happier workplace, she added.

Sarah Kapadia, Partner, Vesta Legal

"Menstruation is a fundamental aspect of women's health, yet it has historically been stigmatised; which can make it difficult for women to talk about their experiences and needs. Offering menstruation leave can help to reduce this stigma by acknowledging the normalcy of menstruation and promoting an open and supportive workplace culture," Kapadia said.

Menstrual leave, she opined, can help promote gender equality in the workplace.

"Menstruation can be a challenging and painful experience for many women, which can impact their productivity and well-being. Offering menstruation leave can help address these needs and support women in the workplace and in courts; this will help promote a more inclusive and equitable workplace culture."

Abha Singh, Advocate, Bombay High Court

"During the 3-5 days menstrual period, there are multiple issues like lower abdomen pain, headaches, nausea and fatigue that one endures...Around 80% of women experience such period pain or worse," Singh said.

In legal terms, Singh mentioned that a classification must be based on an understandable difference that sets the grouped individuals apart from other individuals in order to pass the reasonability test, and the difference must have a rational connection to the goal of the provision.

"Since men and women differ in this regard - women experience menstruation every month, not men - the gender classification used in this context is based on intelligible differentia."

The main goal of provision of menstrual leave is to ensure that women do not compromise on their well-being or productivity at work as a result of menstrual-related issues. So, the provision of menstrual pain leave creates a plausible connection between the categorization or differentia proposed and the provision's intended purpose, she added.

Singh suggested that in addition to leave, different facilities can be explored at the workplace like work-from-home, a comfortable and healthy working environment which does not shun conversation about menstruation, and providing for period care in the office.

"As government employees get around 700 days of child care leaves, giving additional menstrual leaves maybe a little too much. However, the same can be adjusted in that and maximum paid leave provision should be 12 days. That is one leave per cycle," she opined.

Ekta Rai, Advocate, Delhi High Court

Rai delved into how the issue of menstruation is addressed at her workplace.

"As an independent legal practitioner, I have a small team with women as well as men. Being an advocate comes with its own sets of challenges. Such as the unannounced client calls, or senior counsel briefings or a case date that just cannot be adjourned for whatever reasons."

She ensures that her team has an open channel of conversation on every issue, including menstrual cycles.

"The women on the team are given an option of work from home, leave, as well as an easy day at work. They can opt for whichever option best suits their situation on any given day. The team ensures that the work is not hampered due to such leaves by either preparing in advance for any possible crisis or dividing the work in such a manner that neither the concerned team member going through her periods is over tasked nor does the work of the clients suffer."

The important thing to keep in mind is that the issue requires empathy as well as sincerity towards one’s work, she said, adding,

"Having done it since past year and a half, I can attest to the effectiveness of this model."

Anushkaa Arora, Principal & Founder, ABA Law Office

Citing research done by the University College, London in 2017, Arora says that the amount of pain a female goes through while menstruating is equivalent to the pain a person experiences during a heart attack.

"India does not have any provision in law which caters to leave entitlement or benefits which can be availed by a woman who is on her periods, and we still really don’t consider a women on her periods to be that of a major issue. It is to be noted that 20 percent of women as per studies have symptoms like cramping, nausea, etc, that are serious enough to interfere with daily activities."

Talking about how law firms ought to address the issue, Arora said,

"Leave entitlement at least till the first three days shall be given to women working in law firms while on periods. In case of urgencies, such leaves can be converted to work from home," she suggested

Sensitising law firm owners on the difficulties women face is also the need of the hour, Arora said, as people in India still believe that menstruation does not cause significant changes.

Kritika Seth, Founding Partner, Victoriam Legalis

"It is not only working females, but also school and college girls that need to be educated and be given leave during their menstruation period on account of the extreme discomfort and pain they suffer during those days," Seth said.

Owing to the pain they suffer, many women do take sick leave during their menstrual cycles, she added. However, such leave is counted as inclusive in the official yearly paid leaves allowed in accordance with the company’s policy. Many a time, women have to take extra unpaid leaves for the same, she explained.

"It is highly unfair that a group of hundreds of men collectively sit to decide upon the topic of menstrual and reproductive rights of women who are completely unaware of what a woman goes through. It is only fair that legislative reforms should be introduced by a committee consisting of women and doctors who are thoroughly informed of what a woman goes through during her menstrual cycle, and why is it necessary that she be given mandatory paid leave during those days in order to ease her pain."

Talking about her own law firm, Seth said that women employees who feel discomfort and want to stay home to rest, or work from home, are allowed to do so.

"It is extremely important to value the basic physical requirements of women, especially at the workplace. I believe it is high time that the government recognizes the so-called taboo to be actually nothing but a basic gift of God for far larger health benefits. This is a natural phenomenon and it must be duly recognised and addressed all across," she concluded.