Period Leaves for Women: Is it Violation of Right to Equality?

By Tejaswini Kakade [1]

In a significant move, Zomato, a food delivery company in India has granted 10 days of ‘Period leave’ in a year to women and transgender. Apart from Zomato, three other organisations, i.e., Culture Machine, Gozoop, and FlyMyBiz, have introduced period leave for their employees. Bihar Government in 1992 has allowed period leave of 2 days in a month. [2] Across the world, several companies like USA’s Nike, UK’s CoExists, and Australia’s The Victorian Women’s Trust have similar policies in place.

The Menstrual Benefit Bill, 2017, was introduced by Ninong Ering, a Lok Sabha MP, to legitimize the right to a menstrual leave for a period of 2 days. This bill also provided facilities at the workplace for women during menstruation. This bill was supposed to apply to only a few establishments and students from Class 8th onwards. The bill lacked a proper framework for implementation. Considering the present scenario, it has become a rising question whether period leaves need to be granted or not, and upon grant, would they be violative of equality of law.

Article 14 of the Indian Constitution states the Right to Equality. However, it does not state that all laws must be general in character and applicable universally. [3] In M.G. Badappanavar v. the State of Karnataka, [4] Supreme Court stated, “Equality is a basic feature of the Constitution of India and any treatment of equals unequally or un-equals as equals will be a violation of the basic structure of the Constitution of India”. Hence, Article 14 is qualified to make distinctions between the classes on reasonable grounds.

To determine this, the doctrine of reasonable classification is used, which consists of two factors. [5]

  • Classification on the foundation of intelligible differentia.
  • The differentia must have a rational relation to the object which is to be achieved.

Male, Female, Transgender, and Non-binary genders are equal, not identical. Biologically and physically, they differ. However, these differences should not be the reason behind their unequal treatment. Menstruation should not be regarded as solely a ‘woman problem,’ as it also affects trans men and non-binary people.

For centuries, Periods have been a victim of stigma prevailing in our society. Menstruation is marked as a sign of a girl entering womanhood, and in several parts of the world, it is kept hidden in the dark for primitive and regressive reasons, which does not have much of a place in current society.

An average girl starts her first menstrual cycle at the age of 12, which lasts for decades until menopause. With the start of menstruation, many young women go through several painful hormonal conditions and disorders such as Dysmenorrhea, Polycystic Ovary Syndrome, etc. These lead to heavy bleeding, painful cramps, nausea, body pain, etc. Going through menstruation is not optional. It is not a choice. Each body is different and perceives pain differently. During such times, rest is needed.

Expression of intelligible differentia emphasizes understanding the distinguishing factors present and determining whether they provide reasonable grounds or are arbitrary. In this situation, menstruators and non-menstruators are divided based on biology. Further, a Menstruator is classified into two categories, people with conditions or disorders and people who do not suffer through anything. This classification is not arbitrary but a human gesture of acceptance towards people with disorders.

The policy of period leave creates a differential treatment for menstruators and is based on the fact that they have substantially different conditions that need to be addressed and hence require differential treatment.

After the intelligible differentia is established, there should be a rational relation that is sought to be achieved by the statute or policies. The objective to be achieved here is to address such biological differences and understand the conditions and disorders which many of them face. There is a nexus between the menstruators who suffer through pain and granting leave for the same due to the unbearable pain without any economic consequences.

Article 15(3) of the Indian Constitution states about making special provisions for women and children. The purpose behind Article 15(3) is to eliminate the social and economic backwardness that centuries of oppression have done and empower this part of the society. Making policies for women is not unconstitutional on reasonable grounds. However, this policy of period leave recognizes the biological barriers which some women face, accepts the truth, and moves past the stigma which surrounds it. These policies are a move towards progress as a society. These policies should be optional on the ground that if menstruators want, they can take a leave.

In a study by BMJ Open Journal, [6] 32,748 women aged between 15-45 were surveyed. This study noticed that 13.8%, i.e., 4514 women, reported that they stay absent from work during menstrual periods. 80.7%, i.e., 26,438 women, are present at work during menstruation. Further, an average loss of productivity of 33% resulted in a mean of 8.9 days of lost productivity per year due to being present. It was further recorded that 67.7%, i.e., 22,154 women wished for flexibility in their tasks and hours at school or work during menstruation. This study concluded that women lose their productivity during menstrual periods during being present than being absent at work or school. There is a need for alternatives to address this concern.

Apart from taking leave, the Work from Home alternative can also be implemented. This Covid- 19 Pandemic has shown the entire world that one can stay home and get their work done. Instead of traveling by bus and trains for hours, going to the office, and stressing their bodies out, menstruators can stay home for a day and complete their work as per their schedule. The Labour class should also have the option of Period Leave without a pay cut, or else the very objective of this policy shall be futile.

Simply accepting this policy indicates that nobody should try to fight one’s biology to prove their worth or capabilities.

Across the world, some countries do recognise Menstrual Leave. Japan has 12 days period of leave which was implemented in 1947. Indonesia implemented it in 2003, but it lacks proper implementation, and women labour are not paid if they take up this leave. [7] South Korea, Thailand, Taiwan, Cambodia, Zambia, and a few regions in China have similar policies. Italy was the first country in the European Union to consider giving Menstrual Leave, but it has not been enacted. A similar situation is prevalent in Russia. [8]

Another objective behind the granting of this leave is that it should not result in unequal treatment across workplaces.

The element of equality has been present ever since societies were formed, but during its nascent stages, society has been looked at from a man’s perspective. Since societies are evolving, we also need to change that perspective and acclimate the viewpoint of everyone.

We need to redefine our society keeping everyone’s experience in mind. When women’s concerns are raised, negative assumptions and stereotypes related to them should not be reiterated. Society or any law does not have to treat women as ‘other’ and their needs as an ‘exception’. The basic problem in ignoring biological differences is that both men and women are the creation of flesh but their attributes and representation are different. When we attempt to treat women like men, it leads to male-centred practice which leads to ignorance of women-related concerns.

As society is progressing, feminism is trying to remove the stigmas surrounding women. Here, several steps are being made to ensure that this issue has a more comprehensive global outreach. However, many workplaces are male-dominated areas where women want to keep pace with them to prove their equality and capability. Hence, some women avoid mentioning periods when they take leave, fearing it will deem them disabled.

Instead, workplaces should recognise everyone’s hard work irrespective of their gender. To normalise this and to eliminate the fear which persists in the minds of menstruators, steps need to be taken under the Constitution of India to ensure their needs. Or else, it is like taking one step ahead to take two steps back.

Hence, lawmakers and society need to take into account everybody’s point of view and needs into consideration while making policies for each. They need to ensure that they can pacify the needs of all groups.

[1] 4th Year, BBA LLB student, Symbiosis Law School, Hyderabad.

[2] Vrinda Aggarwal, Leave to Bleed: A jurisprudence study of the policy of Menstrual Leaves 8(1), The Journal of Indian Law and Society Blog, 2017

[3] Kedar Nath Bajoria v. State of West Bengal, AIR SC 404 (1953).

[4] M.G. Badappanavar v. the State of Karnataka, AIR SC 260 (2001).

[5] 1(1), M.P Jain, Indian Constitutional Law, Page. 980.

[6] Mark E Schoep et al., Productivity loss due to menstruation-related symptoms: a nationwide cross-sectional survey among 32,748 women, 9(6), BJM Open Journal, (2019).

[7] Vrinda Aggarwal, Leave to Bleed: A jurisprudence study of the policy of Menstrual Leaves, 8(1), The Journal of Indian Law and Society Blog, 2017

[8] Ibid.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Kirit P. Mehta School of Law Publications