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Necessity of Menstrual Leave Policy

INTRODUCTION:

India is turning into a very progressive nation considering the many; be it the new laws, inventions, or great achievements. India is one of the greatest countries and is looked at as an example by many for diversified reason. The contribution and success of women in India has undoubtedly proven the versatility and progressive attitude of the country. This proves why India has always been personified as a goddess. Sadly, the feminine gender has always been a prey to maltreatment. In context, menstrual cycle has always been a topic of taboo. Before the existence of some of the most common laws, women have faced ill-treatment, especially during the days when they are menstruating. A recent instance referring to this happened in a girls’ college where menstruating women were not allowed to enter specific areas, almost 60 girls were asked to strip down to check whether they were menstruating.[1]

The menstrual cycle is a natural process that occurs in every woman’s reproductive system, usually once every 30 days. It is an unavoidable natural process for the successful growth of humans and thus keeps the human evolution in action as such. Yet women face a lot of discrimination, leading to a lack of proper treatment and inaccessibility to basic menstrual hygiene. While scientifically it is a natural process, it causes women, immense discomfort and excruciating pain combined with other side effects of menstruation. Though the body conditions tend to vary from one person to another, the extent of uneasiness a woman experiences is immeasurable.

Such problems have been taken into consideration to formulate the menstrual leave policy that is yet to be approved in India as two bills relating to the same is still pending for approval in the Lok Sabha. While some people are in favor of this bill, some people deny it for various other reasons which shall be addressed further. 

Even though almost half of the population constitutes of women, according to World Bank reports 2019, women make up 48% to only of the workforce and are at a declining rate.[2] They must be provided with a comfortable and safe work atmosphere. Over the years, this will also remove the social stigma attached to it.

HISTORY AND BACKGROUND:

Although the recent bills have evoked a few conversations and debates, this concept in India dates back to the initial years of the 20th century. Period leave in Kerala, in a district called Tripunithura, dates back to 1912 where students in a girls’ school were given an option to avail this leave.[3]This type of leave is prevalent in many parts of Kerala. Even in Bihar, menstrual leave has been in practice although it has not been stated explicitly. On an international level, Japan has been one of the first few countries to have implemented this policy. The Ningxia government in Northern China announced this policy in 2016; a few days after China’s Olympic swimmer discussed her fourth-place suggesting that her physical exhaustion due to menstruation slowed down her strokes.[4] Now several provinces in China have started allowing this type of leave to their female employees. International sportswear company Nike introduced this policy to its employees in 2007. Another startup company in Sweden acclaims to be certified as a ‘menstruation-friendly’ company.[5] Popular companies in India like Culture Machine, Gozoop, Mathrubhumi, FlyMyBiz, and The Mavericks are few of the companies which have availed this to the women of their company. All these companies believe in creating a more comfortable work environment to increase productivity of their female employees. 

LEGAL ASPECTS AND THE BILLS PENDING:

Any policy or new law, before its approval, needs to be discussed in the parliament. Such is the condition of this policy. A private bill about menstrual benefit was submitted by Congress MP Ninong erring in 2017[6], which stated that women belonging to both private and public sector shall be entitled to two days of paid leave with the option of working from home or taking the day off. This bill has been tabled in the Lok Sabha 

In another private bill by Dr. Shashi Tharoor in 2018 titled, ‘The women’s sexual, reproductive and menstrual rights bill’ wherein he had stated that ‘The absence of an equivalent reproductive process in men has resulted in our failure to consider the lack of facility for women’s menstrual hygiene.’ [7]This bill was also in favor of paid menstrual leave with the option of working from home and many more female reproductive rights. 

In specific fields like sports, for example, women do not compete along with men for the simple reason that two different entities with completely different compositions cannot be allowed to compete. Both categories have different rules and guidelines though the basic rule of the sport shall be the same. This analogy clearly explains as to why granting this will not be discriminatory against anyone. However, the constitutional validity of this law is as follows:     

A very common argument that is presented against this policy is equality at the workplace where people often forget to consider equality of working conditions as well. For this purpose Article 15(1) of the constitution, where it is stated that ‘The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them’ is being presented whereas Article 15(3) of the constitution does not prevent special provisions to be made for women and children.[8]

Another viewpoint is Article 42 of the Constitution which states that ‘The state shall make provision for securing just and humane conditions of work and maternity relief”.[9] This is a very important aspect that cannot be ignored by any state government since it is a part of the directive principles of state policy. The very purpose of these principles is to create social and economic conditions under which people can lead a good life. These principles adopted by our constitution contain certain provisions recommending the state to enact laws for the welfare of women workers. The menstrual cycle is another biological process just like maternity which must be given equal importance and cannot be ignored for the reason that it is common or natural. Hence, even if this policy is implemented, its constitutional validity is upheld.

In the landmark case of Kumari Chandra vs. State of Rajasthan[10] in 2018, the Rajasthan high court acquitted a woman, who murdered a child, on the grounds of insanity due to premenstrual syndrome. She was granted the benefit under Section 84 of the Indian Penal Code which states that nothing is an offense which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that what he is doing is either wrong or contrary to the law.[11] In this case, Dr. G.B. Advani, a defense witness, the Professor and Head of the Department of Psychiatry, S.O. Medical College, Bikaner, has given quite a comprehensive opinion about this. He says “Premenstrual syndrome is a condition seen in females before the onset of menstruation. It is reported in 70 to 90 percent of the cases, but more so it is evident in about 60 percent cases. Out of this 60 percent, the symptoms are mild in about 40 percent cases, rest is severe to moderate.” Dr.Shri Gopal Kabra, another defense witness, in this case, stated that few days before menstruation, a woman gets irritated and during that period may also become aggressive. This PMS defense was held valid in a lot of other countries as well. 

In the United Kingdom, in the case of Sandie Smith, a 29-year-old who faced nearly 30 convictions was out on probation for the crime of threatening a policeman with a knife. Her defense was that all the incidents coincided with her premenstrual phases.[12] In another very similar case about PMS syndrome, Christina English crushed her lover to death after a quarrel. This was an unreported decision of the Norwich Crown Court.[13]America’s first successful criminal based on premenstrual syndrome was the Virginia over-speeding case and she was eventually acquitted because of this defense.[14] The best-known case is that of Sandie Craddock, who stabbed a co-worker. This was the latest in her long history of crimes. Her defense pleaded to contend that her premenstrual hormonal changes were very severe and got her raged.[15] The Craddock and English cases were also stated in the Kumari Chandra case. Although these are exceptional cases of high extremity, there are a lot of medically proven records that states that women get uncomfortable, uneasy or reach extremity in a few cases, these cases are an example of how the courts have also recognized this ailment. 

Though there are a lot of policies in favor of women and adolescent girls, none of it allows them to avail additional sick leaves or leave due to menstrual reasons. Irrespective of the nature of jobs that women are in, leaves of this type are not offered.

SCIENCE AND STATISTICS:

One of the main reasons why this policy is the need of the hour is because of the biological reasons related to this policy. With the increase in the awareness of women’s rights, menstruation cannot be ignored. It has been a tabooed topic throughout. However, the menstrual leave policy evoked a few controversial debates and opinions. What people often fail to consider is the science behind the need for this policy.

Usually, women during their menstruation experience nausea, vomiting, cramps, headache, severe body pain, depression, sleeplessness, anxiety, and a lot more. Some of the major problems faced are menorrhagia (heavy menstrual bleeding), endometriosis, premenstrual syndrome, fibroids, amenorrhea (no menstrual bleeding), dysmenorrhoea (painful menstruation), and premenstrual dysphoric disorder. In 2016, John Guillebaud, professor of reproductive health at University College London, explained that period pain can be as “bad as having a heart attack”.[16] In a 2012 study titled Dysmenorrhea by Pallavi Latthe, Rita Champenia, and Khalid Khan, it was  stated: “Dysmenorrhea is extremely common, and it may be severe enough to interfere with daily activities in up to 20% of women.”[17]

Moreover, a 2012 study revealed that 32 to 40 percent of people who have periods report this pain is so severe they have to miss work or school.[18] The American College of Obstetricians and gynecologists have estimated that endometriosis affects 1 in 10 women between the ages 15 and 49. Statistics reveal that 25 million Indian women suffer from endometriosis.[19] While the numbers are big, not much attention is given to the complications and pain they suffer due to this.

CRITICAL ASPECTS:

While there is a lot of science that has been backed to this policy, some people find it biased and cannot accept nature which points out to the fact that the body conditions of a man and a woman are completely different as mentioned previously. Women cannot be punished for their natural framework. While this policy may not take away the pain, it may make the work atmosphere more pleasant. Some of the critical arguments which have been put forth are the increase in hiring bias and pay gap.    

Any company which does not want to hire women will not do so irrespective of the presence of the policy. The whole argument is very patriarchal. Studies have proven that women are more productive than men in the workplace.[20] The reluctance of any company to hire a woman reflects their morale. While people can accept the Maternity benefit Act, there is no need for any company to worry about the productivity of its female workforce in this case. Interestingly a female employee in a company called Mavericks, located in Bangalore had stated in an interview that her productivity has gone up in those two days because of work from home as she does not need to strain herself by physically coming to the office.[21] 

Apart from this, there are special provisions in labor laws and the Constitution which reserves jobs, especially for the woman. Section 5 of the Equal Remuneration Act also does not allow discrimination while recruiting men and women.[22]

The second argument is about the pay gap. Article 39(d) of the constitution directs policies for securing equal pay for equal work[23]. The very purpose of the Equal Remuneration Act 1976 was to establish equal pay for both men and women and the prevention of discrimination, on the ground of sex, in the matter of employment and for matters connected therewith or incidental thereto. Section 4 of the Equal Remuneration Act also states that it is the duty of the employer to pay equal remuneration to men and women workers for the same work or work of similar nature.[24]

The labor force, being posed with many challenges should not be reluctant to legally approach any form of injustice in the workplace. There have been many important laws, brought into force to help create a better working environment for everyone through several landmark cases. Such factors should not stop the policy from being implemented, helping several women in debilitating pain.

CONCLUSION:

Though there are a lot of challenges that need to be tackled by the companies, this will also become a part of the firm’s corporate social responsibility. A lot of countries have started recognizing this and have sanctioned the policy. Menstrual cycle will cease to be a taboo if people start to acknowledge it as a natural process with its own difficulties varied from one to another. Since this policy will be constitutionally upheld as well, it is high time for India to recognize the women workforce and grant such initiatives to create a healthy living, working space.


[1]Geeta Pandey,’Period-shaming’ Indian college forces students to strip to underwear, BBC News (Feb.16, 2020), https://www.bbc.com/news/world-asia-india-51504992.

[2]Working for Women in India, The World Bank (Mar.8, 2019), https://www.worldbank.org/en/news/feature/2019/03/08/working-for-women-in-india#:~:text=Women%20make%20up%2048%20percent,to%2080%20percent%20of%20men.

[3]Ahead of its time! This Kerala school granted menstrual leave to students way back in 1912, The Economic Times (Aug.20, 2017, 03:55 PM), https://economictimes.indiatimes.com/magazines/panache/ahead-of-its-time-this-kerala-school-granted-menstrual-leave-to-students-way-back-in-1912/articleshow/60144000.cms.

[4]Helier Cheung, Rio 2016: Support as China’s Fu Yuanhui breaks period taboo, BBC News (Aug.15, 2016), https://www.bbc.com/news/world-asia-china-37081669.

[5]Maddy savage, How to create a period-friendly workplace, BBC News (Mar.27, 2019), https://www.bbc.com/news/business-47699061?ocid=socialflow_twitter.

[6]Ninong Ering, The Menstruation Benefits Bill , Bill no. 249 of 2017, (Nov, 27, 2019), http://164.100.47.4/billstexts/lsbilltexts/asintroduced/2651LS%20As%20In.pdf

[7]Dr.Shashi Tharoor, The Women’s Sexual, Reproductive, and Menstrual Rights bill 2018, Bill no. 255 of 2018, (Nov. 19, 2018), http://164.100.47.4/billstexts/lsbilltexts/asintroduced/2271as.pdf

[8] INDIA CONST. art.15, cl.3

[9] INDIA CONST. art.42.

[10] Kumari Chandra v. State of Rajasthan, 2018 (3) RLW 2382 (Raj)(India).

[11] The Indian Penal Code, 1860, No.45, Acts of Parliament, 1860 (India).

[12] British Legal debate: Premenstrual tension and criminal behavior, The New York Times (Dec.29, 1981), https://www.nytimes.com/1981/12/29/science/british-legal-debate-premenstrual-tension-and-criminal-behavior.html.

[13]  Regina v. English, Nov. 10, 1981, Norwich Crown Court

[14]DeNeen L. Brown, PMS Defense Successful In VA. Drunken Driving case (June 7, 1991), https://www.washingtonpost.com/archive/politics/1991/06/07/pms-defense-successful-in-va-drunken-driving-case/413e2fe4-5d81-489a-9ae2-16da429c3a48/.

[15] Regina v. Craddock, 1981, 1 C.L. 49

[16]Siobhan Fenton, Period pain is officially as bad as a heart attack-so why have doctors ignored it? The answer is simple, Independent (Feb.19, 2016 12:15 PM), https://www.independent.co.uk/voices/period-pain-is-officially-as-bad-as-a-heart-attack-so-why-have-doctors-ignored-it-the-answer-is-a6883831.html.

[17]Pallavi Latthe, Rita Champaneria, Khalid Khan, Dysmenorrhea, BMJ Publishing Group (Feb.15, 2018), https://www.aafp.org/afp/2012/0215/p386.html.

[18] Kimberly Holland, Menstruation: Facts, Statistics and You, (Nov. 28, 2018) https://www.healthline.com/health/facts-statistics-menstruation#6.

[19]Kamala Thiagarajan, ’I’m trapped in the prison of my body’: The severe, chronic pain of endometriosis, Scroll (Mar.26, 2018, 2:30 PM), https://scroll.in/pulse/872166/im-trapped-in-the-prison-of-my-body-the-severe-chronic-pain-of-endometriosis.

[20]Meera Jaganathan, Women might be more productive than men at work, a study suggests, Market Watch (Oct.6, 2018, 12:39 PM), https://www.marketwatch.com/story/women-might-be-more-productive-than-men-at-work-a-study-suggests-2018-10-06.

[21] Sonam Joshi, Three Indian women with the menstrual leave benefit explain why it is important, The Times of India(Apr.14,2020), https://timesofindia.indiatimes.com/home/sunday-times/three-indian-women-with-the-menstrual-leave-benefit-explain-why-it-is-important/articleshow/75142335.cms important/articleshow/75142335.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.

[22] The Equal Remuneration Act, 1976, No.25, Acts of Parliament,1976(India).

[23] INDIA CONST. art.39, cl.(d)

[24] The Equal Remuneration Act, 1976,No.25,Acts of Parliament,1976(India),Section 4 cl.(1)

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Author

Samyuktha Anand
Student - SASTRA Deemed to be University