Menstrual Leave: Still A Distant Dream?


18 Oct 2022 2:00 PM GMT

  • Menstrual Leave: Still A Distant Dream?

    'I wish I can be a man.' Zheng Qinwen, the Chinese Tennis Player said after losing out on her French Open Title because of Menstrual Cramp. These words are enough to depict a woman's pain and discomfort experienced during the menstrual cycle. However, the menstrual experience is different for different women. For some women, menstruation might not cause any discomfort but for others,...

    'I wish I can be a man.' Zheng Qinwen, the Chinese Tennis Player said after losing out on her French Open Title because of Menstrual Cramp. These words are enough to depict a woman's pain and discomfort experienced during the menstrual cycle. However, the menstrual experience is different for different women. For some women, menstruation might not cause any discomfort but for others, it can be an experience of acute stomach cramps, embarrassment, stigma and missed opportunities. It was only a few months back that the whole world celebrated 28th May as Menstrual Hygiene Day with the theme, "To create a world where no woman or girl is held back because they menstruate, by 2030."

    In the research conducted by the University College of London, Menstrual cramps have been described as 'almost as bad as having a heart attack.' Women constitute half of the workforce in India. As we are progressing, it becomes important for India to acknowledge their needs and give them an equitable platform to showcase their skills. Menstrual leave is one of the most contested topics around the world. It is a kind of leave where women while they are menstruating can opt for leave and choose to stay in their homes.

    Menstruation is a natural process accompanied by a stomachache, nausea, bloating, mood swings and discomfort for some women. It may include conditions like endometriosis, Polycystic Ovary Syndrome (PCOS) eventually take a toll on their health- physical as well as mental. It is important to understand the anatomy of the body and the changes it goes through at the biological and psychological levels. Expecting them to suppress their anguish and behave 'normally' would be extremely unfair. While many countries like South Korea, Taiwan, Japan and Indonesia have already taken the lead in implementing a menstrual leave policy for their female working population, India is far behind in that regard. An attempt was made in 2017 to introduce a uniform policy on Menstrual leave in India, however, the same was not successful.

    Menstruation Benefit Bill, 2017

    In order to provide menstruating individuals with favourable working conditions in India, Ninong Ering, a Member of Parliament from Arunachal Pradesh, tabled a Menstruation Benefit Bill in 2017. He introduced a private member's bill that sparked debates around menstrual leave in India. However, the bill hasn't passed and India doesn't have any policy for menstrual leave in place as of now. To aggravate the situation, no policy matter related to menstrual leave has been discussed in Parliament since the Menstruation Benefit Bill was tabled before Parliament. This is particularly disturbing in light of the fact that there are numerous female leaders holding the position of Cabinet Minister at the Center

    The Menstruation Benefit Bill contained some progressive measures to destigmatize menstruation and provide safe and healthy working conditions for female employees. It aimed at providing a level-playing field to all women by recognizing their physiological needs. Some of the highlights of the scheme were to give women a 4-day menstrual leave. The bill extends to all females in private and public sectors including students above eighth grade. The 1st and 2nd days of the menstrual cycle are met with several discomforts for women which affect the productivity of female employees to a significant extent. Females who decide to opt-out of this benefit will be entitled to overtime allowance at the rate prevailing at that time.

    Furthermore, the bill also provides the provision for resting facilities at the workplace during menstruation. Section 8 of the Bill clearly stipulates that every woman has the right to self-perception of her menstruation in order to avail of benefits under the Bill. This provision leaves the window of misuse of menstrual leave at the hands of the women. Moreover, the Bill stipulates punishment for employers who deprive women of availing benefits under the Bill. It further lays down provisions for the set-up of Grievance Redressal Committees to resolve problems of women facing any issue in availing of their menstrual leave.

    The main objective of the bill was to introduce progressive reforms which would create a women-friendly working environment. The Bill is based on the assumption that all women have the same menstrual experience which is not true. Moreover, the Bill fails to take into account the transgender and non-binary people who bleed and focused on menstruation as a biological process which takes place only in the female body and hence, violative of Article 14 of the Constitution which provides for Equality Amongst Equals. Implementation of the Bill would lead to discriminatory behaviour toward female employees and the pay parity between them.

    Menstrual Leave Vis-A-Vis Right To Life

    Article 21 of the Indian Constitution bestows the Right to life on every citizen as well as to the non-citizens of India. Various judicial pronouncements have evolved the meaning of the Right to Life which now entails the right to health and the right to dignity. In Delhi Labour Union vs UOI &Anr, a petition was filed for the grant of 4-day paid menstrual leave for all women employees. The Delhi High Court directed the Centre and State Government to make the decision as representation in consonance with the rules and practicability. The authority is denying women their right to dignity by not offering them clean and hygienic toilet facilities. Menstruation and the hardships accompanied by it are not some sort of choices that a woman makes rather it is a natural and biological phenomenon over which one has no control.

    Article 39(e) of the Directive Principles of State Policy directs the State Policy to secure "the health and strength of workers, men and women". Through a series of judicial precedents set out by the Supreme Court, one could derive that the Right to health is an intrinsic part of the Right to life guaranteed under Article 21. The Supreme Court in Francis Coralie Mullin vsThe Administrator, Union Territory of Delhi gave its interpretation of the term 'life' mentioned in Article 21 by stating that the "right to life is inclusive of the right to live with human dignity" and not a mere animal existence. It includes all the bare necessities of life which are important for an individual to carry out their daily functions.

    In Nevada Department of Human Resources vs Hibbs, the US Supreme court laid down the ruling that a workplace should take into account differences that exist between men and women and substantive reforms must be made by way of legal intervention and structural changes to accommodate women and their needs. The very recognition of the problems that women face during their time of menstruation would provide female employees with satisfaction and better productivity at the workplace.

    The right to health and medical aid to provide and protect the health of workers was made a fundamental right in the case of Consumer Education andResearch Centre vs. Union of India (1995). The Right to life is not merely having an existence in this world but it has a broader aspect of having the bare minimum necessities and conditions required by an individual to have a sound and healthy life which includes the right to hygienic living conditions and basic sanitation at the workplace.

    Depriving women of these basic necessities would lead to life-threatening diseases like dermatitis, urinary tract infection, and cervical cancer. The physical and biological distinction between men and women should be taken into account and the basic necessity requirement must be decided subjectively keeping in mind the requirement of the body.

    Indian Scenario: Are We Still Ready?

    Periods are still considered taboo in our country. The stigma and embarrassment around the topic of menstruation are to such an extent that women don't find it necessary to talk about their menstrual problems. Due to this, men fail to realize and empathize with the pain that a woman goes through almost every month. Women who experience major mood swings during the time of menstruation are often dramatized when they express their emotions. Denying any work on account of the hardships faced during such time is often taken as an "excuse."

    For the same reason, Menstruation Benefit Bill has been criticized on several grounds. The primary issue was that the Bill hampered gender inclusivity and gave rise to gender bias. The spokesperson of Congress, Priyanka Chaturvedi criticized the bill on the grounds of exclusive policy which would further lead to discriminatory behaviour towards women in the workforce. Women are already struggling to make a place for themselves and demand equal treatment as their male counterparts. This bill would attack their long struggle for a gender-inclusive society. Renowned Indian journalist Barkha Dutt opposed the 10-day period leave policy offered by Indian Food Delivery Service Provider Zomato for their female and transgender employees, for it restricts a women's capabilities and reinforces the age-old ideas of women being subordinate to men. The underlying reasoning behind the 'period leave' policy is that menstruation makes a woman incapable or physically unfit to work 'at par' with their male counterparts.

    The way out would be to have an inclusive policy which would ensure better participation of women in the workforce and allow them to fit in. There is already the provision for Maternity leave for women which has led to biases among employers in giving preference to male candidates for the job position. Menstrual leave would further make it worse for the women as the organization will restrain itself from hiring women, giving women positions of responsibility, promotion and equal pay scale.

    For long decades, women have struggled to make a position for themselves in the workforce and various reasons have been offered by organizations for not hiring female candidates. Many companies in India like Zomato and Swiggy, Byjus, and Culture Magazine have adopted the measure to offer menstrual leave for their female employees. It is important to note that workplaces should be inclusive of the needs of the women's bodies which should be based upon mutual trust and would enable the organization to have a more productive workforce. The onus should not be upon the women to accept the pain and suffer silently.

    Another ground for the criticism of the Bill was that it reinforces the idea that menstruation is a kind of sickness. The motive of the Bill was misinterpreted. The World Health Organization (WHO) has defined 'health' as the "state of complete physical, mental and social well-being and not merely the absence of disease or infirmity." Menstruation is not a disease, rather it is a biological process that when accompanied by mood disorders, nausea and cramps interferes with the women's daily routine and productive capacity that doesn't allow her to be in the best mental and physical state.

    The stigma attached to the topic of menstruation has led to women suffering silently behind closed doors instead of being vocal about their needs and right to take rest. A society where women still need to justify their need to have menstrual leave says a lot about the patriarchal and biased world, we are living in. The problems associated with Menstruation can disrupt the daily routine for the majority of women. It should be kept in mind that the menstrual leave policy is not aimed to encourage discriminatory behaviour at the workplace rather the objective is to be more equitable, fair and just. Coming up with a policy on Menstrual Leave and implementing it would be a big milestone in achieving a gender-inclusive society which would provide working females with a safety net against the vicious society that stigmatizes menstruation.

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