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 RaisedOn 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 ...

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

Sebin James

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