Manas Dasgupta
NEW DELHI, Mar 13: The Supreme Court on Friday rejected a Public Interest Litigation (PIL) seeking a nationwide, mandatory menstrual leave policy for women employees and students stating that such a law could increase joblessness of women as the employers would be hesitant to hire women employees.
“Mandatory menstrual leave for women could ‘adversely impact (their) employment’ because employers ‘will not hire women if we make such a law,” the Chief Justice Surya Kant said. The court argued that compulsory menstrual leave might lead to employers being hesitant to hire women or causing them to “sit at home.” In fact, it noted that voluntary, company-specific policies could work better than mandatory, legally enforced leave. It rejected the petition with the view that such policies could inadvertently create a perception of inferiority, rather than addressing workplace equality.
“Such a law would also ‘create a psychological fear or impression among working women… that they are ‘less’ than men,’ the Chief Justice argued as the court heard a petition by a lawyer, Shailendra Mani Tripathi, seeking direction to states to frame paid menstrual leave rules.
“Creating awareness and sensitisation is different… but the moment you bring in a law mandating menstrual leave, nobody will hire them (women),” he said, warning the petitioner, “You don’t know the mindset of employers. They will not hire women if we make such a law.”
“Affirmative action in respect of females is constitutionally recognised. But look at the practical reality in the job market. The more unattractive the human resource, the less is the possibility of assumption in the market. Look at from the business model. Will any employer be happy with the competing claims of other genders?” Justice Joymalya Bagchi said.
Specifically, the petitioner wanted the Supreme Court to ensure that women, whether students or working professionals, are allowed leave during menstruation. But such pleas, the Chief Justice declared, are “made to create fear…” “They will call women inferior (and say) menstruation is something ‘bad’ happening to them.”
Senior Advocate MR Shamshad pointed out that in 2013 the Kerala government had granted menstrual leave for women students in all state-run universities. Chief Minister Pinarayi Vijayan had then said the decision was part of a “commitment to realising a gender-just society.” Shamshad also pointed out private companies made similar relaxations.
The Chief Justice, though, pointed out that these were voluntary measures. “The moment you say ‘compulsory in law’, nobody will give them jobs,” he stressed, “Nobody will take them in judiciary or government jobs… their career is over. They will say ‘you should sit at home…'”
In January the Supreme Court made a critical ruling on menstrual hygiene, recognising it as an ‘integral part of a girl child’s right to life, dignity, health, and education.’ A bench of Justice JB Pardiwala and Justice R Mahadevan said governments bear a positive obligation, under Article 21 of the Constitution, to protect girls’ and women’s right to health. The court also issued mandatory directions to all governments to ensure free sanitary napkins, functional gender-segregated toilets, and menstrual health awareness campaigns.
But as the apex court refused to entertain the PIL, many gynaecologists also agreed that leaves only perpetuate stigma and stereotypes since it could be managed with workarounds. “What everybody, including most women forget is that menstruation is a physiological process, it is not pathological or a disease,” says Dr Mala Srivastava, Associate Consultant, Obstetrics and Gynaecology, Sir Ganga Ram Hospital.
“There are a lot of plus points of the female hormone estrogen. It is our strength, so why make an issue about the changes it brings about in our bodies. Women are different from men but a leave cannot be a blanket proposition. In fact, various studies show that approximately only five per cent to ten per cent of women experience menstruation that is considered extremely debilitating or severe enough to disrupt their daily lives, such as requiring them to stay in bed or miss work/school.
“That usually happens in people who are suffering from endometriosis (a condition where the tissue lining the inner layers of the uterus, grows outside it) or adenomyosis (a condition where endometrial tissue grows into the muscular uterine wall, thickening it),” she adds. Both these conditions can be disruptive with heavy menstrual bleeding and chronic pelvic pain. It often affects women aged 35–50, especially those with prior uterine surgeries, such as C-sections.
Dr Meenakshi Ahuja, senior director of Obstetrics and Gynaecology at Fortis Le Femme, says the most important part that gets left out of discussions is creating a woman-friendly environment at the workspace. “Women need a medical room, like in schools, or a rest room in office spaces. They also need separate toilets, not unisexual set-ups and better sanitation around their functional spaces. There should be vending machines for sanitary pads so that the woman can keep to her menstrual hygiene. A leave makes menstruation look like a disability and reinforces the stigma that women are inherently less capable in the workplace,” she adds. Most of the discomfort and pain, she says, can anyway be managed with medication.
Dr Ahuja feels employers could offer more flexible working conditions, better healthcare, and more general sick leave that applies to all employees. “If a woman employee is genuinely sick and in pain, then she can take that day off and compensate by working extra on another day to complete her targets. Such adjustment is highly doable. Flexible work hours always help women with their productivity,” she says.
Dr Ahuja says women should definitely consult a medical professional for managing their condition. “It is easy enough to do. Use a tracking app to know when your period is due so you can at least try to schedule lighter, less demanding tasks during heavy flow days. Keep sanitary pads/tampons, pain relief medication, wet wipes, and a change of underwear in your bag. Wear comfortable, breathable clothes. If allowed, work from home or else use a hot water bottle/heating patch at your desk to manage cramps,” she says.
The other drill is watching your diet, lifestyle, exercise and sleep. “Take pain relievers (post-food) early to manage cramps. Drink plenty of water to reduce bloating. Eat iron-rich foods to combat fatigue. Light stretching, yoga, or short walks can help reduce cramps and boost your mood,” Dr Ahuja added.
