On Monday, July 8th, 2024, the Supreme Court asked the Centre and all state governments to consider if they could frame a model policy for women’s menstrual leaves for female students and women in their workforce.
Attorney Shailendra Mani Tripathi filed a Public Interest Litigation (PIL) before the Supreme Court, asking for orders to permit monthly leave for working women and female students nationwide throughout their menstrual cycles. Despite sending a submission to the Center in May 2023, the petitioner (Tripathi) pointed out that the Center had not yet made a final decision.
“Only women are empowered to propagate the human race with their unique ability to create human life, commonly known as maternity. During different stages of maternity, women undergo numerous physical and mental hardships, including menstrual periods, pregnancy, miscarriage, or any medical complications related to these stages of maternity,” the PIL stated.
Chief Justice D Y Chandrachud, Justices J B Pardiwala Manoj Misra, and other members of the bench stated that the matter was policy-related and should not be investigated by the courts. Furthermore, a court’s ruling to allow women to take such leave may backfire and be “detrimental” to the cause since businesses might decide not to hire them.
“This is actually government policy aspect and not for the courts to look into,” the bench said.
Recognizing that Tripathi’s concerns were complex and related to state policy, the Court first rejected the request, saying the government should handle the situation. It did, however, request that the provinces and the federal government investigate the possibility of developing a model policy.
“We permit the petitioner to move the Secretary in the Ministry of Women and Child Development and to ASG Aishwarya Bhati. We request the Secretary to look into the matter at the policy level, consult all stakeholders, and decide if a model policy can be framed,” the bench stated in its order. The directive made it clear that state governments may still take action in this area.
In his Public Interest Litigation (PIL) before the Supreme Court, Tripathi said that although the law contains all the necessary measures to support women during challenging phases of pregnancy, society has purposefully or inadvertently overlooked the menstrual cycle, which is the initial stage of pregnancy. However, the bench allowed attorney Rakesh Khanna to move the Ministry of Women and Child Development secretary and Additional Solicitor General Aishwarya Bhati on behalf of petitioner and attorney Shailendra Tripathi.
He elaborated that menstrual periods are the genus, with pregnancy, miscarriage, etc., being species, which need society’s and the legislature’s first attention.
Historical Context and Current Policies on Women’s Menstrual Leaves
“Bihar is the only state in India providing two days of special menstrual pain leave to women since 1992 through its Human Resources Department,” he noted.
“In 1912, the Government Girls School in Tripunithura, located in the erstwhile princely state of Cochin (present Ernakulam district), allowed students to take ‘period leave’ during their annual examinations and permitted them to write the exams later,” the plea added.
Government’s Position
The Supreme Court had turned down a similar request seeking menstruation vacations for female employees and students earlier in February. The court rejected the request, stating that the government should be in charge of formulating policy, using the same justification. However, the center hasn’t yet decided on this matter. But in December of last year, Smriti Irani, the former minister of women and child development (WCD), declared that menstruation was not a “handicap” and that a policy of “paid leave” wasn’t necessary.
“As a menstruating woman, menstruation and the menstruation cycle is not a handicap, it’s a natural part of women’s life journey…We should not propose issues where women are denied equal opportunities just because somebody who does not menstruate has a particular viewpoint towards menstruation,” Irani had said.
This time, the court emphasized that states may take any action in this respect without fear of interference from the Center’s consultation procedure. The nation’s working and student women had earlier had their request for menstrual discomfort leave denied by the highest court. It had then stated that a representation might be made to the Center because the matter was within the policy domain. The senior attorney stated that the Center has not decided as of yet.
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