by Chaaru Gupta
“The worst form of inequality is to try to make unequal things equal”.
The debate on the issue of period leave again came into motion after Zomato announced a pain period leave policy for its employees in order to deal with the stigma attached to it. Zomato is a global food-delivery company based in India and 35% of its employees are women. The policy allows leave up to 10 days a year and applies to transgender employees as well. This is an extremely progressive step to deal with the taboo that menstruation is in India. It might even influence other organizations to do so. Though not commonly known, the Bihar government has been offering two days per month of period leave since 1992. Surprisingly, some people hold the opinion that it is “discriminatory, paternalistic and regressive”. In this article, the author aims to discuss the stigma attached to the biological process and the constitutionality of the step.
A. Menstruation and the Social Stigma
Menstruation is a biological process wherein a woman discharges blood, the lining of the uterus and other tissues every month. The process usually takes 3 to 7 days. In India, Menstruation, despite being a natural, biological process, has been considered a taboo. Menstruating women are considered ‘dirty’ and ‘impure’. There are numerous myths associated with the process which affect the social, cultural, emotional, mental, and physical life of the women. The restrictions differ in rural and urban areas. In urban areas, the major restriction is the restriction from entering religious places. In rural areas, not entering the kitchen is the major restriction. Other restrictions include not being allowed to offer prayers, not touching the food, and not being allowed to sleep on the bed. In some parts of the country, it gets as extreme as burying the clothes used during menstruation as they might be used by evil spirits and following a strict diet. All the myths stem from one assumption and that is, women are ‘impure’ and ‘unclean’. None of these have been proved to be true in any scientific test. Rather, they have adverse effects on the health and lifestyle of young girls and women.
The experience for every woman differs as every body is different. For some women, it can be a really painful time. Some women suffer unbearable pain which renders them unable to even move. Some women can faint due to the blood pressure-lowering to a huge extent. While for some women, it is like any other normal day.
B. The Impact on Women’s Lives
Apart from mental, emotional, and physical impacts of the lack of knowledge, inclusivity, and sensitization of this issue, there are far-reaching impacts on young girls’ education and lifestyles in the long run. According to a study, 71% of the girls in India remain unaware of menstruation until they experience it for the first time. Nearly 23 million girls drop out of school annually after getting their first period. And the rest of them usually miss up to 5 days every month. There are 355 million menstruating women in India and only 36% of them use sanitary napkins, while the rest use old rags, clothes, leaves, and such unhygienic materials to manage the flow.
Women also avail leaves in the workplace during their periods. However, there are times when availing a leave is not possible due to no leaves being available or pay-cut for leaves, and so on. During such times, the women continue to go to work. Menstruation-related symptoms lead to a great loss of productivity and understandably, presenteeism at work is a bigger contributor to this than absenteeism from work. A study reported that presenteeism causes a loss of 8.9 days per year and 1.6 days per year due to absenteeism. This data shows us the need for period leave not just from the gender equality perspective but also the workplace productivity purpose.
C. Period Leave and the Constitution
The Menstruation Benefit Bill, 2017 was introduced in the Parliament by a private member, Ninong Ering, which provided for a two-day period leave each month for women in the private and the public sector. Some people argued that the bill is discriminatory and acts as a hurdle in the long battle for women to be seen as equal to men in the workplace.
Article 14 of the Constitution of India provides for equality before the law and equal protection of laws. The first is a negative concept that ensures that every person is subject to the law of the land and the law is above everyone. The second is a positive concept which means that the same law does not apply to everyone irrespective of differences of circumstances. It provides that same law should apply only to all those who are similarly situated as it is a matter of fact that everyone is not equal in nature and circumstances. It would be unjust to apply the same law on everyone without acknowledging the natural and inherent differences. Now, women are inherently different from men as far as menstruation is concerned as men don’t menstruate. This makes it possible to classify them in different classes on this basis.
Article 14 forbids class legislation but allows reasonable classification of persons for achieving a specific objective. The classification needs to pass two tests. The classification cannot be arbitrary and has to have an intelligible differentia which means there needs to be a substantial basis for the classification (1) and the differentia has to have reasonable nexus with the objective to be achieved (2). In the case of period leave, women are inherently different from men as far as menstruation is concerned as men don’t menstruate. This makes it possible to classify them in different classes. The basis for the classification is the inherent biological differences between men and women. The object of period leave is to create an inclusive work environment for women. Period leave will help better serve the needs of women and provide them an equal and inclusive work environment. Therefore, it is valid under Article 14. It should also be noted that when legislations like Maternity Benefit Act, 1961 can be enacted to advance the idea of gender equality and inclusivity when pregnancy is a choice, legislation like Menstruation Benefit Bill, 2017 can definitely be incorporated in the laws of the country for menstruation which is an inescapable biological process. Equality does not mean pretending that differences don’t exist; it means acknowledging and accepting the differences that exist.
Article 15 is a facet of Article 14. It forbids any discrimination based only on sex, religion, caste, and so on. The word ‘discrimination’ in Article 15 refers to an unfavourable bias. The principle of classification remains the same for Article 14 and 15. The use of the word ‘only’ means that the discrimination has to be solely on one of these criteria for it to be hit by Article 15(1). One might argue that since period leave is discrimination only on the ground of sex and is therefore hit by Article 15(1). However, it needs to be noted that the constitution provides a departure from the rigors of Article 15(1) by providing Article 15(3) which permits the state to create special provisions for women and children. In the case of Government of Andhra Pradesh v. P B Vijayakumar, the SC held that ‘special provision for women’ in Article 15(3) means the provisions which the state may make to improve women’s participation in all activities under the supervision and control of the state including employment. Article 15(3) aims at bringing effective equality between men and women. Period leave helps to create an inclusive environment in the workplace which improves women’s participation in the workplace/workforce. The Menstruation Benefit Bill, 2017 is therefore not discriminatory as far as Article 15 is concerned.
D. Countering The Other Side
People who disapprove of a provision for period leave have advanced multifold arguments. The first is that it is discriminatory. At the risk of repetition, the author would like to mention that men and women are similar but not the same. One cannot deny that there are natural and biological differences that need to be accounted for and menstruation is one of them. For those, who argue that provision of period leave is unwarranted as it is not required by everyone, period leave or any leave for that matter is ‘optional’ and not ‘mandatory’ to avail. A woman who does not need it can continue going to work. The third is that it will lead to differential treatment due to the reduced number of working hours when compared to men. The burden of not being discriminated against is not on the menstruating woman but the organization. The organizations need to ensure that decisions are taken on the basis of the menstruation based period leave. The fourth is that it affects women’s professional life and acts as a hurdle to their success. As we already saw, the data suggests otherwise. Also, placing the burden on women instead of holding the system accountable for not being inclusive is the exact problem with patriarchy and it needs to be done away with.
There is not an ounce of doubt that there is a long way to go in this movement of gender equality and inclusiveness. But period leave can be a small step to treat what is natural as normal. It is much needed to not only break the long tradition of viewing menstruation as a taboo and ostracizing menstruating women but to also bridge the gap between men and women in the workplace. It will help us achieve the goal of substantial equality envisioned in the Constitution of India.
Views are personal.
Image credits: Provided by the author.
ABOUT THE AUTHOR
Chaaru Gupta is currently pursuing law from National Law University, Jodhpur and is a founding editor at ELS Review.
 MP Jain, Indian Constitutional Law, Lexis Nexis, 8th edition ¶ 1219.