The Supreme Court has refused to entertain a PIL seeking menstrual leave for female students and working women across the country, stating that the matter fell within the domain of policy that only the government can decide.
Declining the plea, a bench of Chief Justice DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala said on Friday that if the employers were mandated to grant menstrual leave, it may disincentivise them from hiring women at all.
Having expressed its misgivings on the plea, the court asked the PIL petitioner advocate Shailendra Mani Tripathi to make a representation to the government – the Ministry of woman and Child Development.
In the course of the hearing today, a law student who had appeared in the matter in caveat told the court that allowing menstrual leave might discourage the employers from employing women.
The court in its order said: “Having regard to the policy dimension in the case, the petitioner may approach the Women and Child Ministry to file a representation.”
The petitioner advocate had argued that it is violation of Article 14 as they are citizens of India and must be treated equally with equal rights.
The petitioner also highlighted the Women’s Sexual, Reproductive and Menstrual Rights Bill introduced in 2018 as a private member’s bill asking the public authorities to provide sanitary pads to women freely.
According to the petition, the Maternity Benefit Act, of 1961 makes provisions for almost all the problems faced by women related to maternity in their true spirit, which can be understood by the provisions under Sections 5, 5A, 5B, 6, 7, 8, 9, 9A, 10, 11, 11A, 12 and 13 which have made it mandatory for the employers to grant paid leave to its women employees for a certain number of days during her pregnancy, in case of miscarriage, for tubectomy operation and also in case of illness as well as medical complications arising out of these stages of maternity.
The petitioner has said that Bihar is the only state in India which has been providing two days of special menstrual pain leave to women since 1992 through its Human Resources,
In 1912, the Government Girls School in Tripunithura, located in the erstwhile princely state of Cochin (present Ernakulam district), had allowed students to take ‘period leave’ during the time of their annual examination and permitted them to write it later, the petition highlighted.