Case Analysis: Shailendra Mani Tripathi v. Union of India and Ors., (2023) | Menstrual Pain Leave

The 'Case Analysis: Shailendra Mani Tripathi v. Union of India and Ors., (2023)' describes the PIL filed by Advocate Shailendra Mani Tripathi seeking menstrual leave for women and female students. It also contains the opinion of the Supreme Court on this matter. 

Dysmenorrhea, commonly referred to as Menstrual pain, is a prevalent problem among numerous women. It is typically described as a dull or sharp sensation in the lower belly, frequently joined by additional symptoms such as headaches, sickness, exhaustion, and swelling. Women experience menstruation in various ways, with some not experiencing any discomfort, while others may suffer severe abdominal cramps, feelings of shame, social stigma, and missed chances. This natural process affects the physical as well as mental health of the women, and as a result, this affects their daily work life. 

Court: Supreme Court of India

Citation: WP (C) No. 172/2023

Date of Judgment: 24th February 2023

Bench: Chief Justice DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala

Facts of the Case 

On 10th January 2023, Advocate Shailendra Mani Tripathi, seeking menstrual leave for working women and students, filed the Public Interest Litigation. In the petition, he cited the study by professor of reproductive health, John Guillebaud at University College London, explaining that according to their patients, period cramps as “almost as bad as having a heart attack.” For some women, the natural process of menstruation is accompanied by stomachaches, nausea, bloating, mood changes, and pain. It could involve ailments like endometriosis and Polycystic Ovary Syndrome (PCOS), which eventually have an adverse effect on their physical and emotional well-being. It's critical to comprehend both biological and psychological processes that shape the body's anatomy. It would be unfair to expect them to hide their suffering and act normal.

Also, it contends that the productivity and job performance of a female employee is negatively impacted by pain during menstruation. As a result, certain Indian companies like Ivipanan, Zomato, Byju’s, Swiggy, Mathrubhumi, Magzter, Industry, ARC, FlyMyBiz and Gozoop have implemented a policy of providing paid leave for menstruation.

The petition also highlights that Bihar and Kerala are the only states that allow menstrual leave. In Bihar, the menstrual leave policy in 1992 was introduced that provides two days of paid menstrual leave every month. In Kerala, periods and maternity leave were granted to females in universities that cover under the preview of the Higher Education department. It violates Article 14 since this Act differentiates women in the name of federalism and state policies. Despite that women suffer from similar physiological and health issues during their menstrual cycles, they are being treated differently in different states of India. However, women having one citizenship, i.e., of India, must be treated equally and shall be conferred with equal rights.

The petition brings attention to two bills, the first bill was “The Women's Sexual, Reproductive and Menstrual Rights Bill” proposed by Dr Shashi Tharoor in 2018. In the bill, it was proposed that public authorities provide free sanitary pads. Another bill, “The Menstruation Benefits Bill of 2017” proposed by Ninong Ering (a Member of Parliament from Arunachal Pradesh), which introduced the concept of menstrual pain leave. However, during the Budget Session of 2022, the Legislative Assembly rejected the Menstruation Benefits Bill, citing it as an “unclear” topic. The petition argues that this demonstrates a lack of legislative determination to advance menstrual pain leave.

The Petition also highlighted the global status of the menstrual leave,

“The United Kingdom, Wales, China, Japan, Taiwan, Indonesia, South Korea, Spain, and Zambia are already providing menstrual pain leave in one form or another...Delhi High Court directed the Centre and Delhi Government to consider PIL seeking menstrual leave as representation."

Union Minister Smt. Smriti Irani, in a written reply in Lok Sabha, said that the

“Central Civil Service (Leave) Rules 1972 do not have any provisions for menstrual leave and presently there”

Spain has given its workers the right to paid menstrual leave, making it the first European country to do so. Additionally, Spain has introduced several other sexual health rights for its employees.

On the other hand, Japan incorporated menstrual leave into its labour laws in 1947 after it gained popularity among labour unions in the 1920s. As per Article 68, Japanese employers are prohibited from requiring women who face discomfort during menstruation to work at that time.

In 1948, Indonesia implemented a policy that was revised in 2003, stating that employees who suffer from menstrual pain are not obligated to work for the first two days of their menstrual cycle.

Taiwan has enacted an Act of Gender Equality in Employment that enables workers to request a day off every month as period leave, for which they are paid half their regular wage, according to Article 14 of the Act.

South Korea, however, follows a different approach and permits monthly physiologic leave under Article 73 of its labour law, allowing all female workers to take a day off each month.

On 15 February 2023, Supreme Court consented to hear a Plea on 24 February 2023.

Issue

Whether menstrual leave for female students and working women across India need to be granted or not?

Laws Applied

Section 14 of the Maternity Benefit Act, 1961:

Appointment of Inspectors - The appropriate Government may, by notification in the Official Gazette, appoint such officers as it thinks fit to be Inspectors for the purposes of this Act and may define the local limits of the jurisdiction within which they shall exercise their function under this Act.

Article 14 of the Constitution of India:

Equality before law - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India

Judgment

The bench, consisting of Chief Justice DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala, rejected a Plea, citing that it was a policy matter. During the hearing, a law student argued that allowing menstrual leave could discourage employers from hiring women. In response to this argument, CJI DY Chandrachud stated that it was true that if employers were forced to provide menstrual leave, they would hesitate to hire women in workplaces. The bench also suggested that the petitioner could present their case to the Union Ministry of Women & Child Development. CJI DY Chandrachud said that

“Having regard to the policy dimension in the case, the petitioner may approach the Women and Child Ministry to file a representation, we are of the considered view that it would be appropriate if the petitioner submits a representation to the Union Ministry of Women and Child Development which may take an appropriate decision.”

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