‘Menstrual leave’ an ignored issue?

Menstrual leave is a critical as well as neglected subject in India. Bihar is the only state in India which has been providing two days of special leave every month to its female employees since 1992.

The issue of menstrual leave recently gained attention when Ninong Ering, a member of Lok Sabha from Arunachal Pradesh, moved a Private Member’s Bill, ‘The Menstruation Benefit Bill, 2017’, which laid down a proposal for two days of paid menstrual leave to every women working in the public and private sectors.

Countries like Japan, South Korea, Indonesia and Taiwan provide menstrual leave to their female employees every month. Most women suffer from pain, cramps, nausea, heavy bleeding etc during their menstruation. The pain and serious fatigue conditions suffered by women during menstruation negatively affects their quality of life. Plethora of studies indicates that pre-menstrual syndrome (PMS) significantly reduces the occupational productivity in women.

Doctors across the globe acknowledge that dysmenorrhoea or menstrual cramps can be as painful as heart attacks. However, some women do experience very little or no pain during their menstruation and it is inappropriate for such women who go through not so painful periods to generalise their experience of menstruation for the rest of the women.

Women are biologically different from men and menstrual leave is unquestionably an equitable approach. But, menstrual leave is contended to be discriminatory which permits the women employees to avail more leave than their male counterparts.

It is further argued that the concept of menstrual leave goes against the constitutional right to equality. Article 15(1) of the Constitution of India prohibits the state from discriminating any citizen on the grounds of religion, race, caste, sex, place of birth or any of them.

However, Article 15(3) empowers the state to make special provisions for women and children which is an exception to the general rule laid down in the Article 15(1). This protective discrimination is a necessity to maintain social equality where there has been a history of discrimination against women.

It has been held by the Supreme Court in Government of Andhra Pradesh versus P B Vijayakumar (1995) that “special provision for women” in Article 15(3) means the provisions which the state may make to improve women’s participation in all activities under the supervision and control of the state, can be in the form of either affirmative action or reservation’.

Thus menstrual leave policies like the other women’s rights legislations such as the Maternity Benefit Act (1961), The Hindu Succession (Amendment) Act ( 2005) etc, will not infringe the Article 15(1) of the Constitution of India.

Article 42 of the Constitution envisages that the state shall make provision for securing just and humane conditions of work and maternity relief.

Although the government has provided protective measures especially to women workers under various labour laws like the Factories Act, 1948, Maternity Benefit Act, 1961 etc, wherein the aspects of health, leave and working hours are provided, the idea of menstrual leave finds no mention.

Even today, menstruating women experience lack of a private place at workplace to change the menstrual materials used, resting areas, the fear of staining and smelling, lack of hygiene in toilets etc.

Working in cities is also characterised by jam-packed work and travel spaces thus hindering the privacy and hygiene for changing and disposing menstrual materials.

Several studies indicate that the efficiency levels of women are low during menstruation. Therefore, availing a leave during the menstrual cycle would not affect the productivity of the organisation and the economy.

Emphasis must be on labour productivity and quality of output rather than long hours of work. At the outset, ‘menstrual flexibility’ proposed by Australian menstruation researcher Lara Owen (2016) appears to be an economically viable alternative. ‘Menstrual flexibility’ enables women to take time off during their period and make up the time on other days.

Gender equality

Furthermore, when the women’s rights legislations like the Maternity Benefit Act have further advanced the idea of gender equality, gender inclusiveness and gender sensitisation, why not another biological process called menstruation?

It is also pertinent to note that maternity is a choice while menstruation is an inescapable monthly biological process that is painful. Menstrual leave policies are also prone to misuse by some women who are capable of working at full capacity during their menstruation. In such cases, measures can be taken to avoid its misuse. The inevitable question which follows is, ‘does menstruating women need separate menstrual leaves in addition to their existing policy for sick leave?’

It is inequitable to merge menstrual leaves with sickness leaves because menstruation is not an illness but an inevitable biological process that is painful for most women.

The subject of menstruation is unaddressed and under-researched in India. Workplace facilities, practices and policies are largely designed for men than women. It is the need of the hour to make the workplaces more gender inclusive to enable the women to achieve their full potential.

(The writer is Assistant Professor, School of Law, Christ (Deemed to be University), Bengaluru)