Case For Menstrual Leave: Why It Must Be Codified As A Statutory Right In Labour Codes
In late 2025, the Karnataka Government took a historic step toward gender-sensitive labour reform by notifying a mandatory 12-day paid menstrual leave for the private sector. While celebrated as a progressive victory under Article 15(3) of the Constitution, the move has landed in the Karnataka High Court in Management of Avirata AFL Connectivity Systems Ltd. v. State of Karnataka, W.P. No. 36659/2025 (Karn. H.C. Dec. 18, 2025). While the Court debates "Executive vs. Legislative" power, a deeper crisis is emerging. In an era of "Work From Anywhere," can a state-specific labour right effectively follow a digital employee across state lines?
The Karnataka Government Order (G.O.) leverages executive power under Article 162 to regulate establishments within its territory. However, the modern workforce is no longer office-bound. Traditionally, labor laws follow the lex loci laborio—the law of the place where work is performed.
Consider a software engineer employed by a Bengaluru-based tech giant but working remotely from Noida or Mumbai. If the "establishment" is in Karnataka but the "workplace" is in a state without such a mandate, a legal vacuum arises. If the employer denies leave to the remote worker, does the Karnataka Labor Commissioner have the jurisdiction to intervene? As held in State of M.P. v. Thakur Bharat Singh,(1967) 2 SCR 454, the executive cannot act to the prejudice of a person's right without statutory authority. Without a central Act, Karnataka's G.O. risks becoming a "paper right" for thousands of remote workers, leaving them at the mercy of company policy rather than constitutional protection.
If Karnataka imposes a financial liability that neighbouring states do not, it creates a perverse incentive for "Digital Relocation." Companies may prefer hiring remote talent from states with fewer mandates, effectively punishing women in progressive jurisdictions.
This triggers concerns under Article 301, which mandates that trade throughout India shall be free. In Atiabari Tea Co., Ltd. v. State of Assam, (1961) 1 SCR 809 the Court ruled that restrictions "directly and immediately" affecting the free flow of trade—including the movement and cost of labour —must be scrutinized. Furthermore, the shift toward The Code on Social Security, 2020, highlights a fundamental tension. While the Code seeks a "One Nation, One Labour Market," its underlying philosophy is deeply rooted in "Ease of Doing Business" (EoDB). By streamlining 29 central laws, the legislative intent was to simplify compliance for the employer. However, in this pursuit of efficiency, labour welfare often becomes secondary. If menstrual leave is not explicitly codified as a statutory right within these Codes, it risks being treated as a "discretionary benefit" that companies can opt-out of to maintain a competitive EoDB ranking. For the digital worker, the EoDB framework may simplify a company's cross-border payroll, but it simultaneously dilutes the state's power to enforce localized welfare mandates.
The G.O. is further limited by its focus on the "Private Sector" in the traditional sense, largely ignoring the burgeoning gig economy. Bengaluru is the "Gig Capital" of India, yet the notification offers little clarity for the millions of delivery partners and service professionals on platforms like Swiggy, Zomato, and Urban Company. The 2020 Code's focus on EoDB is most visible here. While it grants a legal identity to "platform workers," it carefully avoids granting them the status of "employees." This distinction is critical: it allows aggregators to bypass the mandatory financial liabilities of the Maternity Benefit Act,1961. By failing to define "employee" in a way that captures gig workers, the State has created a hierarchy of rights where white-collar corporate employees receive benefits while the most physically strained workers are left out. This oversight potentially violates Article 14 (Right to Equality), creating an arbitrary distinction between different classes of women workers based purely on their contract type.
The current litigation highlights that social justice cannot be a "geographic accident." For menstrual rights to be sustainable, they must be portable. This requires three specific legal shifts:
- Amending the Maternity Benefit Act, 1961, to include "Menstrual Health Leave," thereby creating a uniform national standard.
- Moving from an "Executive Order" to "Statutory Rules" under the Code on Social Security, ensuring that welfare is not sacrificed at the altar of "Ease of Doing Business.”
- Following the model of some European nations, the government could create a "Social Security Fund" to reimburse MSMEs for the cost of paid leave, preventing a "hiring bias" against women.
Karnataka's move is a noble intent. But a Government Order is too fragile a vessel for a right as significant as menstrual health. Until the law addresses the reality of remote work and the need for national uniformity, the "liberty to bleed" will remain a privilege of geography rather than a guaranteed constitutional right.
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