Mandatory menstrual leave could discourage hiring of women, asks Centre to examine policy

The Supreme Court of India on Friday disposed of a writ petition seeking mandatory paid menstrual leave for women across workplaces, while asking the Union Government to examine the petitioner’s representation and consider developing a policy on the issue after consulting relevant stakeholders.

At the same time, the Court cautioned that making menstrual leave compulsory through legislation could lead to unintended consequences for women’s employment. It was observed that such a mandate might discourage employers from hiring women and could negatively affect their participation in the workforce.

The Bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi also questioned the locus standi of the petitioner, Shailendra Mani Tripathi, noting that no woman had approached the Court seeking the relief.

This was the third writ petition filed by the petitioner on the same issue. The first petition was disposed of in February 2023, when the Court allowed the petitioner to submit a representation before the Union Ministry of Women and Child Development. The petitioner returned to the Court in 2024, claiming that the Ministry had not responded to his representation. That petition was disposed of in July 2024, with the Court asking the Union Government to take a policy decision on the matter.

In the latest petition, the petitioner sought directions to the Union, States and Union Territories to frame laws, policies or government orders acknowledging the difficulties women face during menstrual conditions such as dysmenorrhoea, endometriosis, uterine fibroids, adenomyosis and pelvic inflammatory disease. He also sought provisions including menstrual leave in line with Articles 14 and 21 of the Constitution. The petition further requested the Court to address the existing gaps in relief measures, including leave benefits, for working women and female students.

During the hearing, the Bench expressed reservations about the idea of legally mandating menstrual leave, indicating that it could prove counter-productive.

Senior Advocate M R Shamsad, appearing for the petitioner, submitted that only the Karnataka government had recently framed a menstrual leave policy, although the Odisha government had introduced a similar provision as early as 1992. He also pointed out that Kerala had allowed certain relaxations in schools, while several private organisations voluntarily provided menstrual leave.

However, the Bench showed reluctance to entertain the plea. CJI Kant remarked that mandatory period leave might produce adverse outcomes.

"These petitions are deeply rooted, designed PILs. You are not a bona fide petitioner. This is basically only to create a type of impression in young women that you still have some natural issues and you are not at par with male persons and you cannot work like them during a particular time," CJI Kant said.

The Chief Justice also pointed out that the petitioner himself was not personally affected and that no woman had filed the petition. He asked the petitioner to consider the possible long-term impact such a policy might have on women’s employment opportunities.

Justice Bagchi also referred to the realities of the job market. "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?"

"You are creating a right of taking a leave in month, the entire private sector...." CJI Kant said. "This can be harmful to their growth...You do not know the kind of mindset created at the workplace," he added.

Responding to the Court’s concerns, Shamsad argued that while some states had introduced policies, several private organisations were already providing menstrual leave voluntarily.

"Voluntarily they are giving, then it is excellent. That is a very good thing. But the moment you introduce it as a compulsory condition in law, you do not know the damage it will do to the career of women. Nobody will give them responsibilities, even in judicial services, a normal trial will not be assigned to them," CJI Kant said.

The Bench subsequently disposed of the petition, directing the competent authority to examine the petitioner’s representation in line with the Court’s earlier orders of February 24, 2023 and July 8, 2024. The Court said the authority should consider the proposal for framing a menstrual leave policy after consulting all stakeholders.
(With LiveLaw Inputs)