KSRTC opposes menstrual leave on the day unions fought for labour rights

The Kerala High Court could not have chosen a more appropriate day to ask the government: "Can you consider? This is a very serious matter".

This was Justice N Nagaresh asking the Kerala government pleader on Thursday, the day of the general strike called by the Central Trade Unions against the Labour Codes. The "serious matter" the judge was referring to was menstrual leave for women conductors in KSRTC. 

A petition seeking a two-day menstrual leave was filed last December by three women conductors of KSRTC. "The KSRTC has 93 depots but these lack adequate toilet facilities and a scientific disposal mechanism for menstrual hygiene waste," said advocate Anil Kumar M Sivaramam, the lawyer representing the three women conductors. "These women now keep this waste in their handbags till they reach home," he told Onmanorama.

And this humiliation, of having to hide their menstrual waste during work, can last 14-16 hours. The KSRTC now follows double duty and these women conductors will have to work for 14-16 hours at a stretch.

Advocate Sivaraman said the LDF government was open to a two-day menstrual leave policy. He said the government, through the Transport Commissioner, had asked the KSRTC to consider the proposal. Sivaraman said that such a policy has been implemented in Karnataka, Odisha and Bihar.

However, the KSRTC has put its foot down. On Thursday, the Corporation stuck to the objections it had made in the counter affidavit it had filed in the court on January 30. One, it said that the issue was a policy matter and it came under the jurisdiction of the legislature and the executive, and not the judiciary. Two, it said that the Kerala Service Rules, which governs the working conditions of conductors, do not have a provision for menstrual leave.

"The relief sought by the petitioner amounts to legislating through judicial orders, which is impermissible under the doctrine of separation of powers enshrined in the Constitution of India… Moreover, menstrual leave is not a judicially enforceable right, but rather a matter of state policy, and this Hon'ble Court, in exercise of its powers under Article 226 cannot direct the Government to frame its policies," the KSRTC counter affidavit says. 

Interestingly, the counter affidavit dismissing the need for menstrual leave was filed on the day (January 30) the Supreme Court declared that the right to menstrual health comes under the fundamental right to life and dignity under Article 21 of the Constitution.

Three, the KSRTC stated that it was not in good financial health to grant women two-day menstrual leave. "KSRTC is currently facing severe financial constraints, including significant difficulties in disbursing salaries, clearing pension liabilities, and meeting operational expenses essential for public transport services. Introducing paid menstrual leave at this stage would create additional recurring financial liabilities, including payment for leave days, potential overtime or substitute staffing and operation disruptions," it said. KSRTC has 1842 women employees, and two-day paid menstrual leave would amount to 5,700 paid days per month, KSRTC submitted.

It is in this background of the KSRTC's unwillingness that the judge asked the government to consider the request.

Advocate Sivaraman said that the government could make such a special provision for women under Article 15(3) of the Constitution. Article 15 says that the "State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them". And clause 3 says: "Nothing in this article shall prevent the State from making any special provision for women and children."

Maternity leave, reservation in jobs, sexual harassment laws, equal inheritance rights, lenient bail provisions and many such pro-women laws and policies were born out of Article 15(3).