The author of this blog is Sahildeep Singh. He is a postgraduate from National Law University Delhi and can be reached at sahildeep.singh22@nludelhi.ac.in.
Let me issue a caveat before I dig deep into the discussion, the use of either ‘women’ or ‘menstruator’ will include often disregarded people namely ‘genderqueer’ or ‘non-binary individuals’ as well as ‘transgender men’. Thereby, making an attempt to generalise what is not so generalised. After all, why not? To draw an inference, it could be considered that the menstrual cycles are not merely women-specific, and for this very fact, advocating for the menstrual leave policy in India implies a larger need for equality in this very aspect.
You may argue that we as a society have moved on from the so-called ‘patriarchal notion’, that we have civilised and we are currently living in a modern civilised society. Despite this, we being successful in de-stigmatizing even talking about the menstrual cycles, normalizing and moralizing the very natural process of menstruation is, nevertheless, out of sight. Before I put forth arguments for such a policy, we must know how our society views the menstrual cycle. And the simplest way to reach this answer is to ask yourself— "How openly and how often we have discussed menstrual cycles in our homes and particularly with our mothers?”. Lest you don’t know, menstruation happens to women (inclusive of the above-mentioned groups) who fall in the age group ranging between 12 and 50 years. So, if your momma is irritated or angry without any reason, don’t bother her. I am asking specifically to the boys out there. Let me tell you a fact, on any given day, there are 800 million people on the planet who are menstruating. Now, if you may like to gauge this count, it is quite prevalent almost at every place and at every time but if we turn the number of times it showed up as a leitmotif in open public discourse and in policy matters is extremely scarce, could be counted on finger I would say. Okay! I won’t beat around the bush anymore, let me get to the gravamen directly and pour out certain difficult-to-digest facts.
Recently, Spain went on to grant a ‘Menstrual leave policy’ keeping in view the equality and productivity for women, becoming the first European country to do so. Spanish women now have the right to three-day of menstrual leave a month with an option to extend it to five days, in case they experience severely painful periods. Irene Montero, the country’s equality minister said in Parliament, “Women are not full citizens without such rights”. Let me also name certain countries that have agreed to on menstrual leave policy: Spain, Japan, Indonesia, Philippines, Taiwan, South Korea, and Zambia. Now the question that arose is, would it not be on-face discrimination against women who have been kept bereft of such rights and benefits as after all periods are the same for every menstruator irrespective of nationality? Anyway, menstrual leave has not been recognized and accepted on the global plane but, recently it has been gaining traction from the authorities to put forth it as a pivotal policy serving the need of the hour and thereby ensuring women’s well-being and health at the workplace. Dr. M. Rajini, Consultant – Obstetrics and Gynaecology, CARE Hospitals, Banjara Hills, Hyderabad said, “Menstrual cramps, also known as dysmenorrhea, are a common symptom caused by the contraction of the uterus, which can lead to pain in the lower abdomen or back”. Menstruation is often accompanied by cramps, pain, vomiting, nausea, irritability, mood swings, etc. but the severity of these changes differs from person to person and also from period to period. And usually, 1st and 2nd days of the menstrual cycle are met with several discomforts for women which affect the productivity of female employees to a significant extent. For these very reasons, such a leave policy will definitely be beneficial in improving productivity and equality and fostering gender inclusivity at the same time. In a study published in the British Medical Association’s journal BMJ, 80.7% of around 32,000 Netherlands-based respondents reported decreased productivity for an average of 23.3 days a year due to menstruation-related symptoms. In the research conducted by the University College of London, Menstrual cramps have been described as 'almost as bad as having a heart attack’.
Coming to the workforce in India, almost half the workforce comprises women. Therefore, the Central Government has been exhorted by Supreme Court and Delhi High Court time again to take action in such policy matters, it being a policy decision and must come by executive fiat. In India, the Directive Principle of State of Policy [“DPSP”] under Article 39(d) has been an empty promise, it offers equity rather than equality. Men and women being biologically different cannot be expected to deliver similar output and productivity when put in a similar working milieu. Equality often entails equity and fairness hand in hand and the very leitmotif of the equality is upliftment. Thus, the DPSP enshrined under Article 39(d) works antithetically in striking equality for the reason that it fails to recognize the interest of women. Palpably, men and women having different psychological and bodily needs cannot to expected to work to their optimal productivity.
Unsurprisingly, menstruation is extremely stereotyped, stigmatized, and shrouded in secrecy and shame in our society. Women have already grappled a long way to make their presence palpable in heavily male-dominated occupations. India being a rapidly growing economy on the global plane accounts for a meagre contribution on the part of women in its economic growth. As per data compiled by the Inter-Parliamentary Union (IPU), women make up 14.44 per cent of the Lok Sabha in India. A glance at the data in the latest available report of the Election Commission of India (ECI), shows that women represent 10.5 per cent of all Members of Parliament as of October 2021. As per Indian Administrative Services (IAS) data and the central government’s employment census of 2011, less than 11 per cent of its total employees were women. In 2020, this reached 13 per cent. Further, only 14 per cent of Secretaries in the IAS were women in 2022 — 13 out of 92 posts. There are only three women chief secretaries across Indian states and union territories. Looking at other sectors, only 20.37 per cent of MSME owners are women, 10 per cent of start-ups are founded by females, and 23.3 per cent of women are in the labour force.
Thus, in such a scenario, the state must not take leave from exuding its responsibilities and must not offer heights without ladders rather the state must strive to bring a pragmatic gender balance to the workplace by encouraging women via its policies and ensuring equal opportunities to women as well by adding fairness to the principle of equity thereby marking an actual meaning to the essence of ‘equality’. I would not claim that there lies a need for legislation but rather it could be done at the state level by an executive policy under Article 15(3) of the Constitution of India. Somewhere, it reinforces the values put forth by feminists over a long period of time, the values pertaining to the demand for equality as equal to that of men. But womanhood cannot be disregarded to the menstruators. The womanhood and dignity must be read and marked together, dignity anyway runs through the substratum of all fundamental rights. Women must bleed with dignity, unless and until we spread a word among the public and a message to our society destigmatizing womanhood, it cannot be dignified. Let me spell out certain other provisions which could definitely support our cause, these are Article 21, Article 15(3), Article 39, Article 42 and Article 47. A squarely fair argument can be set out concerning Government's lackadaisical approach taken up by the government, particularly in regard to menstrual leave. The Central Government while acting under Article 39 (that there is equal pay for equal work for both men and women, that the health and strength of workers, men, and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength), Article 42 (The State shall make provision for securing just and humane conditions of work and for maternity relief) and Article 47 (Duty of the State to raise the level of nutrition and the standard of living and to improve public health) has been ruthlessly ignorant of the individualistic approach addressing the particular needs of each gender. The state has faltered in recognizing the innate strength of both men and women at par and thus, not recognizing the womanhood with regard to menstruation cycles.
It isn’t the case that India is new to this policy, instead, Bihar and Kerala have already had their efforts in bringing up this policy but to no avail. Bihar Government offered a two-day menstrual leave a month in the year 1992 (exactly, it was thought off way before time) whereas the Kerala Government issued an executive order providing Period leave to students in all higher education funded by State. Even recently, Menstruation Benefits Bill, 2017 was first introduced by Ninong Ering, Member of Legislative Assembly [MLA] of Pasighat (West), Arunachal Pradesh as a private member’s Bill in the Lok Sabha in November 2017 when he was a Parliamentarian; this year he introduced the same Bill on the first day of the 2022 Budget Session in the Arunachal Pradesh Legislative Assembly. You would be appalled to listen to what other MLAs’ response was to such a bill, one said, “Menstruation should not be discussed in a 'holy place' such as the Legislative Assembly” and another said, “It is a ‘dirty’ matter and should be discussed with the state’s Women’s Commission first”. Recently, in January only, a PIL had been filed by a lawyer but the same was remitted to Union Government given that it is a policy matter and would also act as a disincentive to the employer to go for female employee workforce. But there never arose a problem without a solution to it. The way Spain did it, the government of India too can foot the bill or either render some other incentive to the employer by providing certain tax rebates like numerous other countries from European Union did. If the government could render public transport free for women by issuing an executive fiat, then why not the menstrual leave? It would definitely be more beneficial and add more value to the country’s economic growth rather than footing a bill for free public transport for women.
What could be a possible way out of it? If by chance you opined about including this menstrual leave into standard sick leave, then congratulations, you mirror my thought. If we consider the purpose and definition of paid sick leave, it was to reimburse the concerned employee for the loss he incurred due to temporary work loss due to his injury or illness. I couldn’t figure out any reason why this menstrual leave cannot be included in standard sick leave for the fact that menstrual cycles are usually accompanied by symptoms which could be easily included within the term ‘temporary illness’. Loss of productivity to menstruators due to period cramps is proven science, the least that could be done is to recognise this leave policy and ensure a healthy and suitable work milieu for women as well. One argument that could be hurled against including menstrual leave within the standard sick leave that I encountered was— “But adding menstrual leave to the sick leave would end up further stereotyping menstruation in our society”. Obviously, I got caught on the wrong foot but the only answer that could be retorted and I did retort was that we must squint on the benefits that could be driven out of such a policy. I would not say that such a policy is way ahead of time rather egalitarian working conditions addressing the psychological and physical needs of the men and menstruators are emerging as the need of the hour. One more argument supporting my cause is pertaining to the issue of privacy. That the very reason for including menstrual leave in sick leave is that it would keep intact the privacy concern given that a menstruator may not be comfortable sharing their period date details with the employer to claim the period leave. Thus, an enhanced standard sick leave would allow women/menstruator to take a day off from work without letting anyone know about it. Anyway, who would want to work with decreased or no productivity and deal with the pain at the same time, would you dare to? But our mothers, sisters and other menstruators have been doing it with panache.
Just because we don’t have it legally recognised in our country, doesn’t mean it is non-existent. Let’s recognize womanhood and let them bleed with dignity. Also, let us spread the word on this issue thereby making ‘menstruation’ a commonly heard word, ‘sanitary pad’ a commonly seen and carried thing, and ‘discussion on menstrual cycle’ an often-held discourse.
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