Does Fundamental Right To Reproductive Health Extend To Menstrual Leave? Can Executive Power Mandate It? Karnataka High Court Asks

The Karnataka High Court, on Thursday, heard extensive arguments in a batch of writ petitions challenging the State Government's notification directing one day of paid menstrual leave per month for women employees in industrial establishments.

While hearing the counsel for the workforce/women associations at length, the single judge bench of Justice Anant Ramanath Hegde enquired whether working during the menstrual period would affect the women's 'reproductive health' and whether menstrual leave can be mandated through an executive instruction.

“They (petitioners) never said you won't have pain when you are working during your menstrual period. You are not on the grounds. What they are saying is that menstrual leave is not permissible through a notification…. The question would also be if reproductive health is a fundamental right, would that translate into menstrual leave...However, their (petitioners) arguments are more on the mode of implementation of this situation. They are only focused on Article 162 of the Constitution..”, the court observed.

The court, during the submissions, also orally remarked that if the state notification derives its powers from Article 162 of the Constitution, it must be proven that the said notification would stand the test of Article 13 too.

The petition was filed by Bangalore Hotels Association of Management of Avirata AFL Connectivity Systems Limited, challenging the November 20 government notification, mandating industrial establishments registered under various laws, to provide 'one day paid menstrual leave' per month to all permanent, contract, and outsourced women employees.

The operative portion of the G.O. states that women employees aged 18 to 52 working in factories, shops and commercial establishments, plantations, beedi units, and motor transport undertakings are entitled to one paid leave per month on account of menstruation. 

On the last date of posting, the court had allowed the impleadment of All India Democratic Women's Association (AIDWA), Karnataka State Committee in the said matter as Respondent No.12.

Arguments Raised

On Thursday afternoon, Adv. Spoorthi Kotha made submissions on behalf of All India Progressive Women's Association (R6), represented by Adv. Avani Chokshi. She argued that under statutes like the Factories Act, management is already required to ensure labourers' rights, and menstrual leave can be considered another such step. The counsel also contended that menstrual leave should be viewed as a 'cost of doing business', akin to sick leave and national holidays, implying that industries must factor it into their operational costs.

The counsel also added that fundamental rights like Articles 19 and 21 can be enforced against private actors and non-state entities by relying on various precedents.

The counsel also referred to the judgments in Shalini Dharmani v. State of Himachal Pradesh and Suchithra Srivastava v. Chandigarh Administration to assert that the right to reproductive health is a facet of Article 21.

”The notification pertains to five types of establishments. Yesterday, the court had asked the Advocate General about the women who are excluded from the application of notification, considering they are not within those 5 industries..Whether it's a violation of Article 14 or not….but under inclusion in itself is not a basis to strike down a law, Your Lordship....", the counsel submitted.

“Mere inequality in classification is in itself not a ground? Can it be a ground in appropriate cases?", the court asked the counsel.

“They (petitioners) are not preventing you from coming to work. They are asking you to come to work”, the single judge bench remarked.

The counsel for R6 responded that even the petitioner could say that the great advancement in modern medicines can be used to manage menstrual pain but it wouldn't be true.

“…But it cannot be ignored that women develop severe side effects by using such pain killers. They also build resistance to such medicines. They suffer severe pain during menstruation…The argument that this move may result in lack of employability of women has been made. The same argument has been made at different points of time when progressive legislations have been introduced.”.

The counsel, Adv. Spoorthi Kotha added further as follows:

“Having the ability to take that small break will enable them to come back to work after the difficulties they face during the menstrual period. The object is the same, it enables them to come back and participate more fully in work force, milord…"Menstruation is essential to reproduction. Without that there is no Possibility of conception. They should take care of their own health to exercise their choice of reproduction freely”.

Advocate Maitreyi Krishnan, appearing for All India Central Council of Trade Unions (AICCTU) (R2 intervenor), submitted that menstrual health is a broad biological process integral to reproduction. It cannot be narrowly reduced to childbearing alone.

She underscored that it should not be treated merely as an 'individual inconvenience'; it should be treated as a significant workplace issue. Highlighting gender disparity, she noted that even among advocates, the proportion of women working is very low.

The counsel then went on to cite the Periodic Labour Force Report from which it could be inferred that the women's workforce participation in India (above age 15) is only around 35%, far below the global average. She also brought the court's attention to the example of Bihar, which has had menstrual leave for its employees since the 1990s. This accommodation was later extended to contract workers as well in the state.

The counsel also referred to the articles and medical studies on conditions like primary menorrhagia and endometriosis to emphasise the genuine health concerns that women face. She, in her final submissions, concluded by observing that research on women's bodies has historically lagged behind when compared to that on men's bodies, and it cannot even be attributed to the lack of volunteers.

The petitioner's counsel agreed and said that they are not against the intention behind the notification; they are more concerned about the process and procedure behind it.

Adv. Maitreyi argued that the notification was within the confines of the state's executive powers, and the power under Article 162 can be compared with the Union's power under Article 73.

The petitioner's counsel has informed the court that they will submit apex court judgments on Article 162 on the next date of hearing.

After hearing submissions from both sides, the court posted the matter for further hearing on April 1, 2026, Wednesday.

Earlier Developments

Justice Jyoti M had initially put an  interim order staying the government notification. However, the same was recalled hours later, after Advocate General Shashi Kiran Shetty mentioned the matter and said that the interim order passed is in contravention of the Supreme Court's judgment. Further, he stated that he would personally appear in the matter and make a submission on the prayer for interim relief.

During the previous hearing, the court was informed that the state government had filed its objections to the petition. The court asked if the notification applies to all sectors to which the Advocate General Shetty said that it did. Meanwhile, the petitioner's counsel said that the notification pertains to five types of establishments.

The AG referred to Article 42 of the Constitution and said that it pertains to the provision for just and humane condition of work and maternity relief. He referred to Article 15 (3) and to the Supreme Court order directing states to provide this relief.

"Ours is a progressive legislature. Throughout the world such leave is available. Law commission has gone into it. Every stake holder has been heard before issuing notification," Shetty added.

Case Title: Bangalore Hotels Association (R) And Government Of Karnataka

Case No: WP No. 36659/2025 C/W WP 37122/2025