The current discussion about menstrual leave for women raises the broader issue of workplace rights for hundreds of thousands of employees who work in places where these types of provisions are already available. While many advocates for menstrual leave want to see paid menstrual leave included in every workplace, judges continue to explore the possibility of unintended consequences before issuing a nationwide mandate. In April, the Supreme Court heard an appeal to establish a federal policy regarding paid menstrual leave based on the petition filed by Shailendra Mani Tripathi, an advocate who successfully argued that women experience monthly physiological issues that should be recognised under Article 21 regarding dignity and equality.
The case also referenced the new nationwide policy in Spain regarding menstrual leave, as well as similar provisions in other Asian countries. However, the judges were primarily concerned with the broader realities of labour markets and how a legal mandate for paid menstrual leave could negatively impact hiring decisions because employers will potentially think twice before hiring women or give them less responsible tasks. Therefore, if the Supreme Court were to rule in favour of paid menstrual leave, it would need to make a decision that balances the right to equality with the realities of employment opportunities. Chief Justice Surya Kant presided over the case, with Justices Joymalya Bagchi participating in the oral argument.
Judges Warn Mandatory Menstrual Leave Could Affect Careers
Ultimately, the court decided against a national mandate for menstrual leave. Judges stated that mandated policies could result in unintentional outcomes that would ultimately create bias towards employees in the workplace. Chief Judge stated that such policies could potentially hurt careers and make employers think again about which types of jobs they would like to assign their employees, such as conducting a trial or taking a leadership role.
As a result, the bench members advised caution regarding enacting a mandatory leave policy for the workplace. Judges stated that voluntary policies look different from legal rights that are enforceable; therefore, they were in favour of the employer-led or state-led policies to support women. Some states, such as Odisha, Karnataka, and Kerala, have already implemented similar policies for students who experience menstrual cramps, and in addition, several universities have implemented similar types of policies recently; however, the court was adamant about avoiding any legal entitlement to mandatory leave. Judges expressed concern that if they approved mandated leave, it would cause additional stigma against women in the workplace.
Court stresses voluntary policies and government consultation
The labour market realities were carefully considered by Justice Bagchi, too. He also recognised the importance of affirmative action for women; however, he pointed out that there are practical occupational concerns within the private sector of employment. He has suggested that employers may consider mandatory leave an operational burden, and accordingly will shift their hiring patterns over time. Therefore, the bench suggested the implementation of voluntary workplace initiatives.
The judges indicated that supportive policies can be beneficial when they are not obligatory, and mandatory policies will create unintended financial incentives; however, many serious health issues affect women that were also acknowledged, including but not limited to endometriosis (and other menstrual-related illnesses). Finally, the bench has requested that the government conduct an analysis of the possibility of implementation of policy changes, and that all parties affected by the policies must be consulted before there is any consideration of developing a framework to apply nationwide.
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