Even though India as a nation has witnessed several progressive changes recently, the labour legislations in India are complex and numerous. The Central and state governments manage the public and private sector enterprises depending on the type of business they are doing and the total number of employees they have. With each state passing their own statutes to legislate on matters like leave of employees, there is no proper unvaried scheme covering them. 

In this 21st century where women’s rights are being echoed everywhere around us, it is even more important to note that the states in India do not have any provision for menstrual leaves. Recently, an Indian company Zomato has come up with a new strategy to provide its female and transgender employees paid “period leave”. This has triggered a huge debate, dividing women and transgender, in a nation where menstruation is even now regarded as a taboo. Enacting a Menstrual Leave legislation or policy will be hard however it is one of the most requisite steps for change in the right direction.

Introduction

It is the need of the hour that more awareness needs to be spread and attention needs to be given regarding of menstruating persons’ health and safety at public as well as private sectors where they are employed. Menstruation is a healthy and biological procedure that happens not only to women but also trans men, non-binary and gender-queer people. Menstrual leave or otherwise known as period leave is the leaves given to them when they go through menstruation.

When it gets to altering employment environments for someone whose standard of life and capacity are harmed due to symptoms related to menstruation, the greatest difficulty is the stigma associated with menstruation itself. When they feel uneasy discussing periods, they feel that they are required to go to work even if they know that they would not be able to work fruitfully and constructively. A survey has discovered that almost half the population of the women in India do not have a regular menstrual cycle and that almost 68% of menstruating persons suffer from symptoms like bloating, fatigue and cramps during menstruation.

Bearing this into mind, the Menstruation Benefit Bill was put forward in the year 2018 by the ex Lok Sabha MP of Arunachal Pradesh Ninong Ering. While some feel it is an accelerating positive measure, many are of the point of view that it vanquishes the purpose of having equal work for equal pay for everyone and that therefore it is prejudiced.

The Menstruation Benefit Bill, 2017

Menstrual Leave
  • The Menstruation Benefits Bill was put forth to give women employed in the public and private establishments two days of paid menstrual leave each month.
  • The Bill seeks to give finer means for rest during menstruation, at workplaces.
  • Female students of Government schools are also covered under this Bill.
  • The Bill mandates that the leaves should be granted to these women unfailingly and that no one should be differentiated on the type of work they do. If a woman employed in a company is granted paid menstruation leave, the same advantage should be made available to a woman employed in a factory.
  • These leaves will be considered as added to sick leaves.

The bill, nevertheless, has not still been passed by the parliament but there have been numerous people who have accepted this plan while several people have opposed it

Arguments against menstrual leave

  • It has been asserted by those standing against the Bill that women have been working on the weeks in which they have period too and that the proposal of leave during menstruation is only due to the feministic ripple that is presently going on in the country.
  • It is being argued that this bill will steer to sex-discrimination since women, even after availing two days off each month, will receive salary. The proposal will give rise to a large gap in the pay scale of male and female employees.
  • Another contention is that if this policy is implemented, women would become more in peril since employers would wish to appoint only male workers.
  • Finally, it will aggravate the stereotypical identity of women in the community that they are too delicate and even too costly to be employed.

Constitutional perspective

Menstrual Leave

The constitutional mandate of equality has been laid down under Article 14 of the Indian Constitution. Article 14 provides equal rights and equal protection of law to each and every citizen living within the territory of India. The Article gives power to the legislature to enact legislations build on positive discrimination aiding people. The article only forbids those legislations which are in appropriate and prejudiced to a class of people.

This principle has been restated by the Supreme Court in the case of M.G Badappanar v. State of Karnataka 12001 2 SCC 666. In this case, the word equality is defined as one of the fundamental characteristics of the Indian Constitution. In addition, the court mentioned the about permissible classification,  stating that the classification should differentiate things or persons that are arranged or grouped jointly from those abandoned out of the group, and that the differentiation should have a rational relation with the aim seeking to be fulfilled or gained by the legislation in question.

Article 15(1), enshrined in the Constitution of India provides that there should be no discrimination on the basis of caste, religion, race, gender, etc. However, Article 15(3) of the Constitution gives power to the states for creating special provisions for women and children for their active participation in society. 2Andhra Pradesh vs. P.B Vijay Kumar1995 AIR 1648, 1995 SCC (4) 520 States are given this power because injustice was mainly encountered by women in earlier times. Therefore, protective discrimination was essential to preserve equality. Furthermore, under Article 42 of the Constitution, the states are also directed to create provision for procuring just and humane conditions of work.

It is clear that menstrual leaves in any circumstance do not violate right to equality guaranteed under the Indian Constitution. Menstrual leaves will steer people who are menstruating, to perform finer at their workplaces. It will advance social security and lead to a safe and comfortable working environment. In India, the Bihar Government is the only state that is providing women two days menstrual leave. Leave can be availed on their particular menstruation days without giving reason to their employers beforehand.

Likewise, the Kerala Government is also discussing with regard to the institution and execution of paid period leaves. A media company in Mumbai called ‘Cultural machine’ was the first company in India to initiate menstrual leaves for its employees in 2017. Other companies like Gozoop, FlyMyBiz, Zomato, Nike, etc. are also granting menstrual leaves to their employees.

The way forward

It should be kept in mind that implementing menstrual leave policy will not automatically lead to gender discrimination. Before the Menstruation Benefit Bill is to be enacted, it is principal that a delicate and properly designed policy, taking also the trans men, non-binary and gender queer people into consideration, should be designed since there are already more than enough prejudices against them at their workplaces.

The Bill needs to serve people working in all sectors and professions and not only for those working in the white-collar sector. It is principal to not prejudice and only serve the needs of one group. It is also paramount to bear in mind medical problems that are connected with menstruation such as fibroids while studying or reviewing the bill wholly.

Moreover, for the effective implementation of the Bill, it must be launched apace with steps which will advance the involvement of these categories of people in their workforce to make workplaces more gender neutral. Alarmingly, the participation rate of women employees in India has decreased from 36%to 24% in ten years. We as a society should work together to normalize the issue of menstruation. Rather than making fun, the male employees should be more supportive about the period leave. We do not for sure know when the parliament will pass this bill, but to provide and protect equality and also to preserve health, we must not have a negative outlook toward it.

Conclusion

Menstrual Leave

Although the Menstruation Benefits Bill is a welcoming change, it fails to recognize other genders who menstruate and we face yet again a gender insensitivity and non awareness. A paid menstrual leave policy is essential for the hygiene and health of the individual. It will also increase their working productivity. They definitely should not be taken for granted or neglected due to their biological framework. If they are suffering in silence, only to fit in with the other employees and not be rejected then we have seriously failed as a country to implement health-sensitivity owing to gender preferences.

Every person having periods has different symptoms and different severity of pain during their menstruation. Hence, it’s an option for whoever wants to avail leave. It is also paramount to remember that equality at the workplace is equality of all working conditions for all genders and not only for those who can be accepted and then disregarded based on comfort.

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