Leave In The Time Of Red: Biology Moves, The Law Must Catch Up

The Policy Moment that Triggered the Debate

India's public discourse on menstrual leave broke the surface when Karnataka issued its 2025 Government Order granting women employees aged 18 to 52 one paid leave day per month. Its reach - spanning permanent staff, contract workers, outsourced personnel, and daily-wage earners across both public and private establishments within the State, - is unmatched by any prior regional executive intervention in India.

The order's most distinctive feature is not merely its breadth, but its certification-free design, making no demand for medical certificates or clinical attestation at the time of request, recognising menstruation as a recurring physiological event.

This forward-looking measure also exposed the legal fault line - Biology was not the point of contest, it was the legal foundation.

And so, the question that should rightfully be asked is: Why have we built systems that treat women's physiology as an 'edge case' to be begged, rather than a central condition to be designed for from the outset? And why are we still persisting with it?

Constitutional Basis and the Place for Law

The Constitution of India permits women-specific workplace accommodation where physiological realities affect equitable participation. Article 15(3) expressly enables the State to make special provisions for women and children, Article 14 requires that workplace benefits be rational and equitably accessible, Article 21 protects dignity in workplace participation and constrains intrusive proof-demands, and Article 42 directs just and humane conditions of work and maternity relief for women.

These principles have been translated into enforcement by the Supreme Court. In Municipal Corporation of Delhi v. Female Workers (Muster Roll) [(2000) 3 SCC 224], the Court extended maternity benefits to daily-wage workers, holding that constitutional commitments under Article 42 cannot be defeated by the form of employment, and observing that “a just social order can be achieved only when inequalities are obliterated, and everyone is provided what is legally due,” adding that “women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood.”

In Bandhua Mukti Morcha v. Union of India [(1984) 3 SCC 161], the Court affirmed that the right to live with human dignity enshrined in Article 21 derives its life-breath from the Directive Principles of State Policy.

The ruling in Vishaka v. State of Rajasthan (1997) further affirms that workplace conditions must be organised so that no woman has reasonable grounds to believe she is disadvantaged or subjected to a hostile environment.

The conclusion is therefore clear: menstrual leave is constitutionally permissible, but statutorily incomplete. The Constitution lays down the threshold, Parliament must now raise the lintel by defining the entitlement and, with equal force, prohibiting the consequences that must never follow its exercise. That is the circle of law that we must now close.

The Consolidation of Labour Codes

India's four labour codes - the Code on Wages, 2019; the Industrial Relations Code, 2020; the Code on Social Security, 2020; and the Occupational Safety, Health and Working Conditions (OSH) Code, 2020 - implemented on 21 November 2025, consolidated 29 prior labour statutes into a harmonised framework governing wages, industrial relations, social security and workplace safety.

The reform has been commended for its broader definitions of workers and wages, and expanded coverage of welfare, safety, and workplace conditions. Menstrual leave is the glaring exception to this suite.

Stigma and the Evidence Dilemma

The dignity cost of proof-demands has already manifested in ways that expose the risks of unregulated evidentiary intrusion. In 2020, the Shree Sahajanand Girls Institute in Bhuj, reportedly asked students to remove undergarments for inspection after a sanitary pad was found in a hostel compound, provoking public outrage for its indignity. Even prior to this was a similar case in 2018 at Rani Lakshmibai Hostel of Dr Hari Singh Gour University in Sagar. In July 2025, girls in RS Damani School in Thane were allegedly forced to strip for a period check after blood stains were found in the washroom. In October 2025, non-teaching staff at Maharshi Dayanand University in Haryana were accused of forcing junior women employees to present used sanitary pads as proof of menstruation to justify late arrival, triggering a criminal process for sexual harassment and an internal inquiry. In May 2025, a campus clinic at Gengdan Institute, a private undergraduate college affiliated to Beijing University of Technology, reportedly asked a student to lower her trousers to verify her menstrual status before issuing a sick-leave note.

Each of these abominable and harrowing episodes shows a failure of evidence design. The harm lies not in recognising the cycle, but in interrogating it. A recurring fact of nature cannot be a periodic burden of proof. We must turn this biological constant from a perceived liability into a managed operational factor, much like any other health and welfare provision.

Even where enquiry is less physically intrusive, institutions have at times sought menstrual history data for student-athletes or employees through administrative forms that raise privacy concerns. Such requests, though facially bureaucratic, carry the same design risk: the process of proof becomes a substitute for the process of participation.

Comparative Jurisdictions: A Spectrum of Design Choices

A comparative survey of foreign jurisdictions confirms that legislative divergence is deliberate, bounded, and instructive.

The first notable attempt to grant menstrual leave by public instrument came from the USSR in 1922. It was short-lived, withdrawn within five years for enabling discrimination rather than preventing it. The lesson? Good intentions alone do not protect a right; law must also protect what follows when that right is used.

Japan, in 1947, placed menstrual leave into statute through Article 68 of its Labour Standards Act, but left pay for employers to determine. South Korea followed in 1953 with a clearer mandate: one day of leave each month, if a woman employee asked for it. Over time, workplace practice evolved to include attendance bonuses that applied to everyone, whether or not leave was taken.

Taiwan's 2002 law permits one day of menstrual leave per month, but limits the benefit to three days a year at half pay. Certification is not required when leave is requested, and enquiry becomes permissible only when regular sick leave has already been exhausted. The model shows a careful instinct - trust first, verify only when there is reason to, and never as a matter of routine.

Indonesia's labour laws, beginning in 1948 and reaffirmed in 2003, take a different approach. Women employees are exempt from working on the first two days of their cycle if they tell their employer they are unwell. There is no proof required.

Zambia, in 2019, introduced a similar accommodation, calling it “Mother's Day leave.” One paid day each month, if needed. The right is trusted; the consequences are named.

Vietnam's 2021 decree sets a daily paid break for women during menstruation, counted as working hours. It also sets a minimum of three leave days per month, while allowing employers and employees to agree on more if necessary.

Spain, in 2023, amended its law to permit paid leave for menstrual pain, with no upper limit on days. But it requires a doctor's note when the request is made.

Italy's Parliament debated menstrual leave in 2016-17, when four Democratic Party lawmakers proposed up to three paid leave days each month for those facing painful periods. The idea gained attention, prompted discussion, and was spoken of well beyond the chamber walls. Yet it did not become law.

What Italy's experience shows us is not a failure of advocacy, but the value of a signal. Debate in Parliament has a way of doing that - it tells the world that a right is possible, even when the statute has not yet found its final form. It also reminds us that a policy left in mid-air, without legal shape, can flicker and fade as quickly as public interest moves on.

Domestic Institutional and State Practice

India's State-level and institutional engagement, by contrast, is largely through administrative orders and campus policies.

Kerala's work began in 1912 when the Government Girls School in Tripunithura permitted deferred examinations for menstrual absence, followed decades later by Cochin University of Science and Technology (CUSAT)'s semester-wise attendance condonation, and finally Kerala's 2025 Higher Education Order extending 2% attendance relaxation across State universities and affiliated colleges, alongside two monthly leave days for women ITI trainees introduced in 2024.

Bihar's policy lineage from 1992 stands among modern India's earliest State-level recognitions of paid menstrual leave and continues institutionally through Chanakya National Law University, Patna, which permits two monthly leave days for women students with remote completion and compensatory academic adjustment.

Sikkim High Court's 2024 policy allows two to three monthly leave days for women Registry employees upon medical officer recommendation, demonstrating internal evidence channels, but not statutory anchoring. Sikkim University followed suit in late 2024, granting female students one day's menstrual leave per month, adjustable against the 75% attendance requirement.

In 2024, Odisha revised its benefit from ten additional casual leave days annually to 12 paid leave days monthly for women up to age 55, signalling administrative clarity by monthly accrual.

Each model attempts to lend structure administratively and is laudatory. What remains missing is a central statute that brings about uniformity in practice across India.

Legislative engagement, signalling, and the cost of non-enactment

Private member's Bills in India have attempted menstrual accommodation thrice in Parliament.

The Menstrual Benefit Bill, 2017, introduced by Ninong Ering, proposed two days of paid leave each month for menstruating women in both public and private sectors, along with better restroom facilities and awareness campaigns. But the Bill lapsed without discussion.

Thereafter, the Right to Menstrual Hygiene and Paid Leave Bill, 2019, was introduced by S. Jothimani, the Right of Women to Menstrual Leave and Free Access to Menstrual Health Products Bill, 2022 by Hibi Eden, the Menstrual Leave and Hygiene Bill, 2024, by Shambhavi Choudhary, and the Menstrual Benefits Bill, 2024 by Dr Kadiyam Kavya, were introduced, all without success.

WHO's 2022 articulation on menstrual health and rights, delivered at the 50^th Session of the Human Rights Council Panel Discussion on menstrual hygiene management and gender equality, together with India's obligations under the Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW), are constant reminders that participation-linked workplace entitlements must be defined by statute, not left to implication or human resources discretion.

The way forward and conclusion

Menstrual leave remains an uncalibrated footnote in labour law, a design imperative rooted in human dignity and workplace equality, not a concession to be petitioned for. Executive orders, howsoever progressive, are not a substitute for legislative entitlement.

A well-designed statute must secure four structural safeguards. First, a rebuttable presumption that a leave request is made in good faith. Second, employer enquiry constrained to provable and exceptional misuse, never routine certification. Third, a prohibition on retaliation, service disadvantage, or hiring bias for availing the leave. Fourth, a nationally uniform implementation standard binding all workplace classes and jurisdictions. These are not policy embellishments, but statutory load-bearing beams required to close the entitlement gap without creating secondary discrimination vectors.

The debate has run long enough. The legislative task is not merely to confer the benefit, but to secure uniformity, evidentiary proportionality and equality of participation across all States. And the challenge to the Karnataka order may yet be the bell that tolls for Parliament to act.

Author is Former Member (Judicial), National Company Law Tribunal. He continues to engage with insolvency, judicial process, and institutional reform through writing, research, and advisory work. Views are personal.

Views Are Personal.