By- Shajal Silas, 5th Year Student at Amity Law School Delhi, Guru Gobind Singh Indraprastha University, Delhi
The recent announcement by Zomato India, launching a policy to grant menstrual leave to its employees, initiated a frenzied debate across the nation, weighing the strengths and shortcomings of such schemes while mulling over the possibility of its uniform introduction across the country.
Menstruation has been the subject of extensive medical research, the same establishing that 30 to 90% of women report suffering from painful menses, whereas 10–20% complain of such severe pain that they are unable to perform their work or they have to miss school. A recent study involving a group of Hungarian working w
omen discovered the existence of a causal link between work-related stress and exacerbation of dysmenorrhea.
Consequently, countries like Japan, Indonesia, Korea, and the Philippines have laws that allow a working woman to take time off during her period if the discomfort and pain are too great to do her job.
A similar approach had been introduced in India in 2017, when digital media startup Culture Machine introduced a monthly leave for the first day of menstruation for its employees, marking the advent of such policies in India. The initiative was furthered by media company Matrubhumi, and companies such as Horses Stable and FlyMyBiz, which instituted similar schemes for their employees. Additionally, the Gender Sensitizing Training for Officers and Staff of National Human Rights Commission-India, organized by the Asia Pacific Forum in collaboration with NHRC, saw participants formulating an action plan for the Commission, which endorsed the provision of menstrual, maternity, and child care leave to be given to all employees without discrimination, including contractual and outsourced staff.
The menstrual leave policy, initially sponsored by private entities, subsequently invited legislative discussion through the Menstruation Benefit Bill, 2017, a private member bill introduced in the Lok Sabha by MP Shri Ninong Ering. The Bill, seeking to redress frequent demands across India for further amendment to the Labour Laws to include better working facilities to the female workers employed in the public and private sector, provided detailed clauses aimed at benefitting women and adolescent girls. It envisioned the provision of paid medical leave to working women and leave to girls from school, for two days, on account of menstruation. It also visualized a rest period, as well as menstruation-friendly facilities for women working in the establishment during their menstruation. Moreover, it aimed to entitle women to overtime allowance in instances of not availing the leave. In response, the Ministry of Women and Child Development recently stated there was no proposal to provide for menstrual leave, neither did the ministry plan to pilot legislation on the issue.
The efforts to introduce such policies have been met with both admiration and resistance. They have been questioned repeatedly, in heated discussions involving a plethora of arguments that have advocated against the statutory introduction of medical leave for menstruation. The foremost of these arguments states that such laws will hamper the goal of gender equality (more correctly, equality of the sexes) as envisaged in the Indian Constitution.
In this context, it is meant to reflect on the connotation of the term gender equality, which does not denote that men and women become the same; only that their access to opportunities and life changes is neither dependent on, nor constrained by, their sex. The equality of all human beings entails being free from the restrictive and dehumanizing effect of stereotypes and being equally entitled to the protection of the law.
The US Supreme Court, in the case of Michael M. v. Super. Ct. of Sonoma County, dealing with an allegation of gender bias in certain statutory laws, stated that “Equal Protection Clause does not "demand that a statute necessarily apply equally to all persons" or require "things which are different in fact ... to be treated in law as though they were the same.'... This Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.” The Indian Supreme Court similarly remarks, “The makers of the Constitution intended to apply equality amongst men and women in all spheres of life. In framing Articles 14 and 15 of the Constitution, the constitutional goal in that behalf was sought to be achieved. Although the same would not mean that under no circumstance, classification, inter alia, on the ground of sex would be wholly impermissible….”
In this vein, it is imperative to mention the notion of substantive equality, which represents a theory that is less concerned with treating alikes the same and more concerned with recognizing differences between men and women and ameliorating the unequal consequences of those differences. In this context, a menstrual leave policy would only seek to provide for substantive equality, rather than promoting inequality. In agreement with this view, Deepinder Goyal, CEO of Zomato, states that the policy was introduced with the understanding that men and women are born with different biological realities, and aims to make room for our biological needs, while not lowering the bar for the quality of work.
Another opposition to the policy avers that such schemes will be construed as an implicit admission of an apparent weakness of women vis-a-vis men, and will inadvertently lead to a devastating effect on the equality of opportunities extended to them at the workplace. The argument is in essence, flawed, and also underlines a deep-rooted biased belief that women seek to shirk work, by citing physical reasons that are seen as mere excuses. It was arguments similar to these that discriminated against maternity leaves for women.
In reality, the leave, would simply work to further the understanding that women’s bodies have different needs that must be catered to for productive work experience, and minimize the stigma around menstrual health, rather than becoming an institutionalized statement of their weakness. Usually, women do not take sick leaves for menstruation, either due to stigmatization or in order to save the leaves for other exigencies, in institutions where there is a fixed quota for medical leaves. The introduction of uniform legislation addressing menstrual leave will serve as a welcome solution to this issue. It also needs to be noted that that the Constitution encapsulates safeguards, which can be resorted to, in case the introduction of such a policy leads to discrimination by employers against women in the workplace.
Universally, menstruation and menstrual hygiene are accepted as a basic human rights issue for women (including transwomen). Recognizing the same, our country is empowered to draft and approve legislation that enforces this new regime. Where Article 15 of the Constitution of India states that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them, clause 3 enlists that nothing in this Article shall prevent the State from making any special provision for women and children. Article 15 (3) of the Constitution enables the State to legislate special provisions, or frame policies to inter alia, address gender-specific concerns. There are gender-specific laws, to foster good practices in the workplace, and ensure gender equality (special provisions in the Factories Act, the Maternity Benefit Act, the Equal Remuneration Act, etc). “The guarantee of the equal protection of laws means the protection of equal laws. It forbids class legislation but does not forbid classification which rests upon reasonable grounds of distinction”.
Additionally, the Constitution also provides the State with the directive and the responsibility to provide just and humane conditions of work and for maternity relief. India, as a signatory of international conventions protecting basic human rights and women’s rights, needs to consider the inclusion of a law legitimizing such policies, in order to protect women’s health and well-being.
The introduction of a law legalizing such policy and making it a norm would require not only legislative initiative, innovation, research and deliberation, but would also require sensitizing the public and addressing the cause of menstrual health. The way forward could possibly include contemplation on the need for such legislation by the Law Commission of India, in tandem with NGOs, think-tanks, and the general public, to usher in a more women-friendly environment in the country.
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)
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