The Supreme Court bench, hearing a petition that urges States to frame a menstrual leave policy for working women and students, has done well to direct the issue to the Union Ministry of Women and Child Development. The problem is nuanced with strong arguments on both sides. Much deliberation is required before a policy is framed in this regard. While it is true that many women do suffer severe physical pain during their menstrual cycle, not all women need the leave.

Policies should be formed in such a way that women can claim such leave, if they need it. But it must be ensured that such policies do not lead to gender stereotyping and discrimination at workplace. As the Chief Justice observed about the caveat filed by a law student in the case, “…if you compel employers to grant menstrual pain leave, it may operate as a  de facto disincentive for employers to engage women in their establishments… This has a policy dimension.”

The policy must strike the right balance between providing women a safe and supportive working environment while not deterring companies from hiring women. This is particularly important against the backdrop of women’s participation in labour force in India being among the lowest globally at 19.1 per cent in 2021, according to ILO. Socio-cultural pressures, limited number of jobs, tough commute in urban areas and care-giving responsibilities are already reducing the numbers of employed women. Enforcing mandatory menstrual leave every month could reduce employment opportunities for women further. We can draw from the experience of other countries which have a menstrual leave policy. Japan which was among the first to form a menstrual leave policy in 1947, lays down that employers cannot ask women experiencing difficult periods to work on those days. This leaves room for women to decide if they want to claim the leave or not. Indonesia too lets women decide if they want to work or not in the first two days of their period. Taiwan gives women a day off every month, at half the regular salary, subject to a ceiling of three days of this leave every year. India too should frame a flexible leave policy which leaves the choice with women whether to avail the leave or not. The Centre could step in and bear part of the cost incurred by companies, in providing menstrual leave.

In the context of Women’s Day, it would be appropriate to review laws of the Centre and the States dealing with women’s working environment. According to the State of Discrimination Report by Trayas Foundation, more than 50 Acts and 150 rules across States are acting as obstacles to women who want to work. For instance, women cannot work in jobs deemed arduous (such as underground mines, lifting heavy objects, etc), hazardous and morally inappropriate jobs. Giving women the choice, instead of adopting a paternalistic attitude, can better serve their cause.