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Sharishtha Lal,
Manipal university Jaipur
Abstract
Menstrual Leave refers to a time period where a female student or female professional or female employee gets a few days off work on account of feeling pain and uneasy owing to her menstrual cycle. On such days, it is difficult for the female candidate to work with her full potential. Providing women with menstrual leave is step forward towards allowing women to feel comfortable in such a patriarchal society. With active participation of women in almost every walk of life , makes the humanity think that providing menstrual leave will be compassionate enough to allow women to hold equal ground as that of the another man and attain gender equality. Menstrual Leave can be implemented in a number of ways say give one or two day paid leave a month or providing rest room in the company campus to allow females feel comfortable and work from there, or allowing to work from home while in excessive pain or even reduce working hours or give at least a half-day off. Different countries have their own way to make it function.
Historical Background-
Menstrual Leave has no existence as far as Indian history is concerned because women were usually not allowed to hold in any important administrative positions. However, ate the global level, after first and second world war, a few countries started realising the need and importance of Menstrual Leave. After, the First World War (1914-1981), Russia was the first country to eventually allow menstrual leave, although it could last only for 5 years since employers started preferring male candidate over female candidate owing to menstrual leave policy. This was followed by Japan, after Second World War in 1947, gave menstrual leave policy status of a national policy. South Korea, Chinese Provinces, Taiwan and Indonesia[i] also legalised by menstrual leave policy in the later years. There was myth that proper resting during periods improves fertility. Thus, after world wars, in order to recover the substantial loss population, females were allowed menstrual leave based on the false belief. However, the outlook changed, and the reason for menstrual leave was pain and discomfort experienced by females for a period of 3 to 5 days and not the prevailing myth.
Later a controversy erupted in the year 2000, where an Indonesia sweatshop was used by Nike for inhuman acts where females were physically examined when they asked for leave owing to pain during periods. It was claimed by the company that such policy was applicable on the limited international stores and it did not allow all female workers to take paid leave[ii]. It is to be noted that repeated efforts were made from time to time to raise awareness about the same, for instance, in 2010, steps were taken to reduce stigma associated with menstrual leave in Canada by Yara Doleh[iii]. A proposal was also made in Russia in 2013, to provide menstrual leave[iv]. Zambia became the first nation to implement menstrual leave policy in 2015[v]. Now, in India the topic of Menstrual Leave is getting momentum.
Arguments in favour of the leave-
Menstrual leave is more of a necessity and basic essentials instead of an option since looking at the current trend where women are involved are in more or less in every field of work, so the condition of their workplace and comfort affects the society at large. At the same time, our society is an ancient patriarchal society which carries its own taboo of discussion over the topic of mensuration, so it appears difficult for the society to accept provision of menstrual leave all at once, but by proper implementation and awareness, this stigma can be shattered. It aims to normalise and break the silence on a natural cycle which every woman between 13 to 50 years of age witnesses each month.
Even if the company or country does not provide for the paid leave, females themselves have to take a day or two off in case of excessive discomfort, the only difference would be that this time this leave would be unpaid. Even if the female employee is forced to work with the period cramps, she will not be able to maintain her work efficiency compared to other days, which ultimate affect the growth of the company one way or other, so it appears a better option to allow them to have rest instead of forcing them to work with half their capacity. As per a report[vi], 70.2% women have dysmenorrhea (Painful Mensuration) with 23.2% experiencing pain for at least 2 days. As per census of 2011, 336 million females menstruate for 2-7 days each month[vii]. Thus, looking at the number, it become clear that the proportion of women who need menstrual leave is not a minority and thus this provision becomes a necessity. This initiative will also help make the female population feel confident and make the world a little easy and flexible place to fit in.
Drawbacks of the policy-
The most prominent reason that menstrual leave is not accepted by the society and even by some population of women themselves, is that this kind of policy leads to discrimination between men and women, supports sexism and instigates employers to hire a male employee over a female employee, as giving paid leave to a female candidate will not work in their favour. For this reason, a reasonable proportion of women are against the provision of menstrual leave as it will diminish their chances of being selected. Secondly, it will increase workload of the HR department of the organisation as they will have to keep record of each female candidate’s leave application. Another fear associated with this policy is that women may even misuse it as there is no accurate mechanism of asserting whether a particular women feels acute pain or not, it is upto her own interpretation whether she uses the provision even for slight pain or discomfort, plus the leave is paid so she has absolutely no disadvantage by taking such leave.
Followed by another effect that such policy may retard the overall economic growth of the nation, we are a nation whose President itself is a female, it is not to mention that women play an irreplaceable role in shaping the economic growth and if each women takes leave each month, when added up can leave a possible dent on the economy. Additionally, men may feel alienated and this is can be tagged as discrimination against men, leading to widening the ridge between men and women at workplace. It may be wrongly assumed by male community that women are less capable at the same work thus result in opposite results.
What does the Law say?
Menstrual leave topped the list of the hot topics in January, 2023 on account of a public Interest litigation (PIL) filed by Shailendra Mani Tripathi[viii], before three-judge bench including Chief Justice D.Y. Chandrachud. The petitioner claimed that a national –wide policy for menstruation leave must be devised under Maternity Benefit Act, 1961. The respondent raised the contention that such a leave system will discourage the employers from appointing women at important position. The Apex Court although agreed that such policy is desirable but concern of respondent are also logical. Notable, Supreme Court observed that policy making and forming new legislation is within the purview of government and parliament respectively and hence Supreme Court could not intervene in their roles, on these grounds petition was dismissed. In spite of rejection of petition, the issue gathered motion as it an important concerning plight of women in society.
As far as question of law is considered, there no provision for menstrual leave in either the Labour Laws or any other related law. As per the Minister of Women and Child Development[ix], Government is not planning to provide or amend any provision of Civil Services(Leave) Rules,1972 in an attempt to accommodate the policy of menstrual leave. Therefore, there is no express provision in law which supports the claim. As per article 42[x] of the Constitution of India, it is the duty of the state to provide just and humane conditions to work which also include enforcing basic requirements of a women worker and thus maintaining hygiene, toilets, and even menstrual leave can be included. Additionally, Article 15(3) of the constitution of India also imposes duty on state to work to improve condition of women in all spheres of life.
Now about the contention that a gender neutral sick leave must be used to accommodate the menstrual leave is not a valid argument as a male candidate gets about a number of days leave for medical reasons round the year while a female candidate has to accommodate at least 12 days (considering one painful period day a month) in those same number of days provided round the year along with any kind of injury or illness. This does not support equality as the concept of equality is not merely related to treating all alike but it includes the concept of treating equals equally and different differently i.e. . Women are different from the male counterpart on various aspects and thus to bring equality, women must be provided with all amenities needed by virtue of being a woman to bring them at par. Thus, to bring substantive equality[xi] , menstrual leave must be provided irrespective of the general medical leave provided.
Indian Scenario
As far as Indian government perspective is considered, on different interval of time, various efforts were made by government and individuals by presenting different act based on mensuration leave but unfortunately, none of the efforts could take form. A private member[xii] presented The Menstruation Benefits Bill, 2017, followed by Menstruation Rights Bill, 2018[xiii]. These bills proposed a period of three days leave for not only women, female students but also transwoman. As per the bill, 40% of the school girls feel discomfort during periods and thus skip school.
On the level of private players, a number of them like Zomato[xiv], Swiggy[xv],Byjus[xvi], Mathrubhumi, Zupee and Magzter[xvii] have provided some form of consideration for menstrual leave. The fact that if such enterprises can manage to provide women with period leave, then it a set example for the government to learn from such development. Not to forget, even a few states like Kerala (for female students) and Bihar have made menstrual leave functional since 1912 and 1992 respectively[xviii]. However, each of the above mentioned institution have their pattern of providing leave as some have a limit of 3 days per month and some have 10 day limit a year, thus to bring synchronisation in the number of days , Parliament is expected to come up with a national policy.
A handful of Countries like South Korea, Zambia, Indonesia, Japan, Vietnam and Philippines have already legalised Menstrual Leave policy on a national level, which is enough to encourage India to take initiatives in this arena. Spain has become the latest country to allow menstrual leave and also first in the list of Europe to allow leave on such basis[xix]. Women labour force is least active in India, as highlighted by a World Bank report[xx], it is lowest among the world and is declining since 1990. This emphasises on the issue of providing women with adequate condition so as to encourage and motivate them to work.
Conclusion
Mensuration is a natural monthly process in which a female of age 13 to 45, endures pain and discomfort along with mood swings. Some of them also develop a heath condition, like endometriosis, ovarian cysts, dysmenorrhea and many more, and it gets difficult for them functional potentially. Thus considering such conditions and the fact that so many women are engaged in all walks of life, it is our duty to provide them with the least comfort by allowing them to take a day off or work from home on those harsh days in form of menstrual leave. It is also significant that menstrual leave must be differentiated from general medical leaves i.e. casual and sick leaves, since mensuration is natural and not an illness. It is high time that we normalise the taboo about mensuration and take efforts to make workplace a workable place for women alike. Understanding the implementation of menstrual policy in various countries and companies can help the parliament and government devise a strong national policy for the same which can achieve the given objectives and minimise the side effects.
References
[i] - https://www.ndtv.com/world-news/the-global-push-for-paid-menstrual-leave-as-spain-brings-in-law-3789125
[iii] -In 2010, the Toronto Observer reported that Yara Doleh, a researcher and archeologist, proposed an optional menstrual leave in Canada. https://www.cbc.ca/news/health/paid-menstrual-leave-debate-resurfaces-1.2860589
[iv] - Gayle, D. (2013). Russian MP accused of sexism for proposing law giving women two paid days off a month when they are on their period. The Mail Online. <https://www.dailymail.co.uk/news/article-2382637/Russian-MP-proposes-law-giving-women-period-2-paid-days-work.html>
[vi] -Report based on cross-sectional study of about 1000 healthy women between 11-28 years of age. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5016343/#:~:text=Prevalence%20of%20dysmenorrhea%20was%2070.2,pain%20for%202%2D3%20days
[vii] - https://swachhindia.ndtv.com/is-it-time-for-india-to-have-a-menstrual-leave-policy-75023/#:~:text=Pros%20And%20Cons%20Of%20Menstrual%20Leave%20Policy&text=Abhishree%20Choudhary%2C%20Research%20Analyst%20at,have%20to%20take%20such%20leaves
[viii] - Shailendra Mani Tripathi v. Union of India, WP (C) No. 172 of 2023, order dated 24-2-2023 (SC).
[x] - Provision for just and humane conditions of work and maternity relief The State shall make provision for securing just and humane conditions of work and for maternity relief
[xi] - Menstrual Leave - A Step Towards Substantive Equality, 7.2 NLUJ LR (2021) 166.
[xii] - First introduced by Shri Ninong Ering, Member of Parliament, as a private member’s bill before the Lok Sabha< https://www.khuranaandkhurana.com/2022/06/23/menstrual-leave-an-overview-of-the-menstrual-benefit-bill-2017/>
[xv] - https://blog.swiggy.com/2021/10/20/a-brief-note-on-our-commitment-to-increase-women-delivery-partners-in-our-fleet/
[xvi] - Period Leaves to Child Care Leaves, All About BYJU’S Updated Leave Policy. https://blog.byjus.com/life-at-byjus/culture/from-period-leaves-to-child-care-leaves-check-out-byjus-updated-leave-policy/
[xvii] -https://swachhindia.ndtv.com/is-it-time-for-india-to-have-a-menstrual-leave-policy-75023/#:~:text=Pros%20And%20Cons%20Of%20Menstrual%20Leave%20Policy&text=Abhishree%20Choudhary%2C%20Research%20Analyst%20at,have%20to%20take%20such%20leaves
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