On 13th March (Friday), the Supreme Court said that women’s job prospects would be hampered if menstrual leave were made compulsory, since employers would no longer be willing to recruit them. The views were made by a bench of Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi, who declined to consider a request for such a break in relation to working women and female students. Advocate Shailendra Mani Tripathi filed a Public Interest Litigation (PIL) asking instructions to several states to establish paid leave policies.
Kant expressed, “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.” He noted that the petitioner was not personally affected and no woman had made such a submission in the court.
“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 it from the business model. Will any employer be happy with the competing claims of other genders,” he asked.
Kant mentioned, “Creating awareness and sensitisation is different, but the moment you bring a law mandating menstrual leave, nobody will hire them. You are creating the right to take leave in a month. This can be harmful to their growth. You don’t know the mindset created at the workplace. They will not hire women if we make such a law.”
He pointed out that obligatory holidays could impact women’s employment opportunities in response to the flexibility offered in Kerala schools and private enterprises offering voluntary leaves.
“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 careers of women. Nobody will give them responsibilities or government jobs, even in judicial services, a normal trial will not be assigned to them. Their career is over. They will say – You should sit at home after informing everyone,” he asserted.
However, the court directed that after engaging all pertinent parties, the competent body might consider the representation and look into the potential of creating a menstrual leave policy. It was recommended that the central government take into account the petitioner’s proposal to model the policy after consulting with all relevant sides.
The petitioner has filed three writ petitions for the same reason. The petitioner was allowed to file a case before the Union Ministry of Women and Children after the first petition was disposed of in February 2023. He then approached the court the next year, claiming that the ministry had not addressed his representation. The petition, which asked the centre to make a policy decision, was disposed of in July 2024.
The apex court outlined, “The petitioner has made a representation to the authority. It seems to us that whatever was required to be done at the end of the petitioner, he has done for the welfare of young women. It is not necessary for the petitioner to approach the Court time and again and seek a positive mandamus. We direct that the competent authority shall consider the representation directed to be considered by this Court by order dated February 24, 2023, and July 8, 2024, for modelling a policy in consultation with all stakeholders.”
