Menstrual Leave A Facet Of Bodily Autonomy, Needed Due To Lack Of Workplace Facilities: Women's Association Tells Karnataka High Court

All India Democratic Women's Association told the Karnataka High Court on Wednesday (April 8) that the lack of facilities for women at work places is one of the reasons behind the executive order granting menstrual leave, which affords them with an opportunity to deal with the issue in the privacy of their homes.The court was hearing a challenge to the state government's notification mandating one day paid menstrual leave for women employees in five sectors/ establishments. During the hearing the counsel appearing for the respondent trade unions and intervenors (in favour of the government policy) emphasised that the policy is a facet of body autonomy and directly correlated to the 'doctrine of progressive realisation of rights'.The counsel appearing for All India Democratic Women's Association, Karnataka (AIDWA) submitted before Justice Anant Ramanath Hegde:“Lack of adequate facilities in work premises to deal with menstrual hygiene is one of the reasons why this government order has been issued......when there is no atmosphere of privacy to deal with the same, there is no right to dignity... By virtue of the govt order, they can take a leave to deal with it in the privacy of their homes. This is one of the rationale behind the notification...”. 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.Application of Article 162 & Source of PowerMeanwhile Advocate Maitreyi Krishnan appearing for All India Central Council of Trade Unions (AICCTU) continued her on the application of Article 162 of the Constitution.Earlier, the petitioners had primarily argued that the impugned government notification doesn't mention Article 162, and hence it cannot be deemed as issued under Article 162. Secondly, the petitioners had submitted that there is no 'vacuum in the law' because of the parent statutes like Factories Act and the separate notification should not have been brought in. Thirdly, the petitioners had argued that the procedure had not been complied with while issuing the notification.Refuting the submissions made by the petitioner employers and other stakeholders, Advocate Maitreyi referred to N. Mani v. Sangeetha Theatre and Ors. (2004) to assert that even if the source of power is not explicitly mentioned, that does not vitiate the notification per se.'Vacuum in Law' On the aspect of 'vacuum in law', the counsel referred to the parent statutes such as the Factories Act, Shops and Establishments Act etc and said, “…If there are better benefits that are available elsewhere, these laws/statutes wouldn't prejudice them from availing it..Ultimately its for the benefit of workers. For example, the Factories Act doesn't mention maternity leave. They say the Factories Act is a comprehensive act. The Maternity Benefit (Amendment) Act came about only in 1973...”.It was submitted that powers that the legislature has, the executive too has them under Article 162. It was stated that none of these parent Acts are all comprehensive.“Under Article 162, as long as the law is not in violation of any other existing law, it will prevail…The apex court says that powers under Article 162 grant the executive certain powers. There is no embargo on the legislature to make any laws except when an existing law occupies the field…Then the state govt. cannot interfere… For example, In Visakha, the court observed that there was no law on point. The apex court passed certain directions since there was a vacuum. Since there was a vacuum, executive powers of the state could also have been utilised..."”, the counsel said. The counsel also clarified that the state government has followed due process before issuing the notification such as setting up a committee and putting up the draft order for objections. One of the petitioners too was a part of the said committee which they have suppressed in the current petition, she added. At this stage the court orally said,“….Suppression can't be ground to dismiss the petition. If we were to assume that the notification is invalid, mere suppression from the petitioners wouldn't make the notification valid”.Menstrual Hygiene Management As FRMeanwhile counsel appearing for the All India Democratic Women's Association (AIDWA), submitted,“…The existing legislation, though it has been referred to in the impugned notification, it is not a gender specific legislation. Once the Supreme Court recognises the right to reproductive health as a fundamental right, what would...

Menstrual Leave A Facet Of Bodily Autonomy, Needed Due To Lack Of Workplace Facilities: Women's Association Tells Karnataka High Court

Sebin James

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