Period Leave for Women – A Violation of Right to Equality?
February 13, 2022
Menstruation is a natural, normal biological process that occurs monthly for approximately 1.8 billion girls and women. Although the world has advanced in every way, the concept of menstruation is still regarded as a social stigma in the twenty-first century due to unnecessary embarrassment, shame, illiteracy, and poverty. Menstruation is still considered dirty, unholy, and unclean by many people in society. Unfortunately, there is only a small ratio of the society that openly discusses the periods. Not many women in the world experience consequential or smooth distinction during their periods, others go through some serious weakening torment, which resultantly makes their bodies vulnerable.
Menstrual agony is accompanied by premenstrual and postmenstrual sides i.e., mood swings, sleeplessness, awkwardness, thereby making it difficult for women to work for long tiring hours. Great efforts have been made for the welfare and upliftment of women, there have been certain legal pronouncements made, for the protection of the rights of women i.e., from banning Triple Talaq for Muslim women, and the recent one of increasing the age of marriage for women from 18 to 21.
In this modern era of women empowerment, women have been brave enough to fight for their rights and have proven themselves in all the sectors and spheres of the workforce from serving in the army to being at the frontlines during the pandemic. But even with such advancements, the concept of menstruation is still considered taboo and the period leave has still not been implemented in the legal systems. The introduction of the period leave in the legal frameworks would make people aware of menstruation, lifting the veil of a social stigma on the menstruation cycle and barring them from treating it as a taboo. This would also benefit a women’s health, implying that menstruation is not a choice that women make every month, but rather a biological and natural process over which they have no control, and thus they should be allowed to take period leave. As a result, the issue of period leave is contentious, raising concerns about women’s health, workforce participation, and gender equality at work.
Menstrual Leave – Legal Framework
Countries like Japan, Taiwan, China, Korea, Indonesia, and Mexico have introduced within their legal framework the policy of period leave, for the benefit and the welfare of women. Several companies and organizations in the United Kingdom and Australia have also introduced within their local constitution, a policy of period leave. In the Indian scenario, the state of Bihar in 1992 introduced a two-day leave to the women working under the state’s government services. Then, in 2017, a digital media company instituted in Mumbai introduced one day leave for women, referred to as the ‘first day of leave’. The policy was introduced for all the women employees working in the organization. Following a similar policy, the private schools in Kerala in 2017 instituted a policy of period leave for all the female teachers working in the school. These steps taken by the organizations triggered the center and the state for introducing period policy at a national level.
After hearing all the recommendations, and the filing of numerous writ petitions in the courts by various companies and organizations for the introduction of period leave policy, the congress member of the parliament and the Lok sabha member named Ninong Ering moved the proposal for the introduction of a private bill known as Menstruation Benefit Bill, 2017. The minister stated that the bill would create a women-friendly environment and also suggested his recommendations for the introduction of female labor laws for the welfare of women of the country. The provisions of the bill can be summarised below:
The bill identified the right to leave for females, which means that women working in both the public and private sectors would be granted four days leave, and girls in school would also be granted menstrual leave.
The women employees and employers of the companies and any of the organizations should be granted thirty minutes rest period at least twice a day.
The bill stated that there must be a mandatory establishment of a creche in all the organizations and companies along with other common essentials for the women.
The woman should have a right to self-perception of her menstruation per the provisions of the act.
The committees such as the Internal Complaints Committee and the Grievance Redressal Committee were accorded with the duty for addressing any grievances on menstrual leave for women.
It also stated that if any woman would be denied her right to menstrual leave or any of the facilities or any fact that infringes the basic provisions of the act, then they would be punished with an imprisonment of one month and a fine of fifty thousand rupees, which can even be extended.
The main object of introducing this bill in the Lok Sabha was that it would create a women-friendly environment, the health of the women being considered as a priority. However, the bill was opposed by the various ministers of the Parliament stating that this would lead to a drop in economy, the various women organizations stated that the bill contained traditional and orthodox thoughts thereby considering women as a weaker sex in the society.
Constitutionality of Period leaves
There was a lot of criticism from various organizations, governmental agencies, and ministers that the idea of period leave was acting discriminatorily, was flawed and invalid to the extent that it would act against the constitutional mandates of the country, and would also violate the basic structure of the constitution. When the Menstruation Benefit Bill was introduced in the Lok Sabha, it was never passed. Menstruation is a natural occurrence that a woman goes through every month. Doctors from all around the globe have stated that menstrual cramps can be as painful as heart attacks. These pains and serious fatigue conditions that women suffer during menstruation can negatively impact their health. It is also accurate to say that women and men are biologically different and period leave is hence an equitable approach. However, the concept of period leave has raised questions on constitutionality and has been held discriminatory.
Part III of the Indian Constitution includes the concept of fundamental rights, which are essential for protecting citizens’ rights and liberties against the government’s encroachment on power delegated to them. They represent the fundamental values held dear by the citizens of the country.
Article 14 of the Indian Constitution grants the states the authority to provide equality to all citizens within the territory of India in the form of equal protection of the law and equality before the law. The concept and the principle under Article 14 do not amount to the laws being uniform and universal always but state that the laws can be provided to persons and classes, if there are special circumstances or specific reasons behind the introduction of such laws, or if such laws can benefit the society at large. Similarly, the Supreme Court in the case of E.P.Royappa v State of Tamil Nadu, 1974 has drifted from the traditional concept of equality which was based on the reasonable classification, and laid down a new concept of equality, stating it to be dynamic with various distinctive aspects and dimensions. Hence, it can be stated that the right to equality, being dynamic is also read with other provisions of law, and it makes no point that period leave is held to be discriminatory, as these are accorded to them for providing them with basic health requirements.
Article 15 of the Constitution states that no citizen within the territory of India shall be discriminated against based on caste, color, creed, place of birth, religion, or gender, and shall be provided equality in all terms. The provision of Article 15 has also allowed for a special provision and power to the states and the center for making any law that could hold in the upliftment of women and children. Various laws and legislation have also been passed by the center under the provisions of Article 15(3) of the Constitution of India namely the Maternity Benefit (Amendment) Act 2017, Sexual Harassment at Workplace Act, and many more.
Menstrual leave can also be covered under the ambit of Article 21 i.e., the right to life under the constitution of India. Firstly, one should not be expected to work during menstruation, because of the menstrual pains, and the body being weak and vulnerable. Secondly, third world countries suffer from basic sanitation problems like lack of proper sanitary facilities, lack of clean, safe, and private facilities for women, and lack of adequate menstruation alternatives. These result in the infringement of their basic right to health and also human right to health.
Should Period Leave be granted?
The act of granting period leave to women and transgender women has raised a debate amongst the various organizations within the country. Some welcome the step as a much-needed reform while others imagine that this would project women in a weaker light, thereby making them weak.
Arguments in favor of period leave
The various arguments can be presented in the favour of period leaves, which can be summarised below:
Period leave, if granted, would provide women with a healthy environment in compliance with the right to health, so that they would be able to handle their menstrual cycle-related illness and discomfort.
The policies would be providing women with an opportunity to take leave, thereby providing them with flexibility at the workplace.
The policies would have the potential for reducing the social stigma around the concept of menstruation, thereby making people aware of the same.
The policies would open a room for discussion on the concept of menstruation, and women would be able to discuss this biological process on public platforms, thereby bringing the concept of ‘Normalising Periods’.
These discussions would normalize and neutralize the concept of menstruation, thereby stigmatizing the conversations and the traditional thoughts around it, and also have the potential of reducing self-objectification.
The policies would aid the individuals from various sections of society such as genderqueer, non-binary individuals, and transmen by providing them with an increased amount of safety, who suffer through transphobia, gender discrimination, and violence.
The various legislations have been passed by the center for the uplift of the women such as the Maternity Benefit Act and other women labor laws for promoting gender equality, gender sensitization, and gender inclusiveness, then the period leaves can also be granted with the thought of the same objectives.
The policies can be passed in compliance with Article 42 of the Constitution of India, which has accorded the power to the state for creating just and reasonable conditions at work for women.
Arguments against Period Leave
The arguments that can be presented against the grant of period leaves can be summarised below –
The various organizations in the society have stated that the idea of the grant of period leave is mainly due to the prevailing feminist wave in the society, which would lead to feminism.
The grant of period leave has the potential for perpetuating the assumptions that women are unfit for work which may lead to further gender discrimination.
The women can fear using their grant of period leaves because the disclosure of their menstrual status can reinforce the stereotypes of female fragility.
The grant of period leaves can be considered as a violation of the basic right to equality, thereby leading to the widening of a gendered gap.
Some women organizations stated that the idea of menstrual leave can project women in a weaker light.
The menstruation of a woman is not by choice, but a normal biological process and should be normalized by society. The menstrual leave can be referred to as being discriminatory to the basic constitutional mandates, but it is positive discrimination from a perspective that this would lead to the upliftment of the women in the society. Also, it can be inferred that menstrual hygiene and women’s health should be considered under the basic right to health, and if not considered can affect the health of a woman, thereby leading to life-threatening diseases. The granting of period leave is needed for satisfying the substantive equality law, by considering the biological differences among the sexes, by accommodating the same through structural changes and targeted intervention. The policy of period leave must be considered as a policy that would contribute to the upliftment of women, and gender inclusiveness by the overall development for the same. The grant of period leaves advances gender equality if they are adopted in spaces committing to menstrual stigma and dismantling gender-based oppression. Hence, India should adopt the policy of period leaves within its legal framework.
Editors Note – The article introduces the concept of period leave for women that suffer agony and trauma during their menstrual cycle. It speaks in great depth about the Menstruation benefit bill which was introduced in the Lok Sabha in 2017. It also looks into the various constitutional provisions surrounding the right to live, the right to equality, and the right against discrimination and calls period leave a gender-neutral and positively discriminatory practice. The article concludes that gender-based physiology should be considered while considering the question of equality between men and women and hence, period leave should be granted not only to make women more comfortable in the workplace but also to destigmatize the issue of menstruation in society and normalize a biological process.