Balancing rights and realities: Debate on menstrual leave in India

Joya Saikia

(The writer can be reached at joyasaikia1990@gmail.com)

The Supreme Court of India’s recent ruling on paid menstrual leave has sparked renewed conversations on gender equality, labour market participation, and women’s welfare. While gender disparities, such as wage gaps and occupational stereotyping, are well-documented, the court’s observations emphasize the complex relationship between menstrual leave policies and the broader economic landscape. This article delves into the nuanced debate surrounding paid menstrual leave, examining its potential implications on the workforce, gender equality, and the social context in India.

The Gender Wage Gap and Labour Market Disparities

India’s gender wage gap is among the highest in the world, with women earning about 20% less than men on average, and the disparity grows at higher career levels. The roots of this inequality are multifaceted, driven by factors such as gender stereotyping, the undervaluation of women’s work, and limited access to leadership positions. Paid menstrual leave, intended to support women’s health and well-being, is now at the forefront of discussions about how to balance these existing disparities in the workplace.

The Supreme Court’s ruling reflects concerns that mandating paid menstrual leave could exacerbate the gender gap in labour markets. The court highlighted that if menstrual leave becomes a legal entitlement, employers might need to hire additional workers to cover for absences, raising wage costs. This could lead employers to discriminate against women during the recruitment process, further reducing female workforce participation. Therefore, the court has suggested that menstrual leave should be a matter of public policy rather than a judicial mandate, signaling the need for broader discussions on the subject.

Lessons from Maternity Leave: The Maternity Benefit Act and Female Employment

India’s experience with the Maternity Benefit Act (MBA) provides a cautionary tale about the unintended consequences of well-intended policies. The Act, amended in 2017, grants women 26 weeks of paid maternity leave. While this reform was hailed as a victory for women’s rights, recent research by economists like Purna Banerjee, Debojyoti Mazumder (RBI), and Sreya Biswas (BITS) reveal that the policy has had counterproductive effects on female employment. The researchers found that except for highly skilled workers, the maternity leave provision led to a significant decline in female workforce participation. Employers, burdened by the cost of extended paid leave, have become more reluctant to hire women, particularly for entry-level or mid-career positions.

The implications of this are significant for the debate on menstrual leave. If menstrual leave were granted, the potential wage burden could exceed that of maternity leave. A woman is entitled to 52 weeks of paid maternity leave for two childbirths over her career, while if menstrual leave is recognised for two days each month, it would accumulate the same wage burden as maternity leave within two years. Thus, the employer’s adverse response to maternity leave could be repeated for menstrual leave, but with an even more substantial impact.

Bihar’s Experience with Menstrual Leave

Bihar stands as the only state in India that has mandated two days of paid menstrual leave since 1992. Despite this progressive policy, the state has the lowest female labour force participation rate in the country. According to the National Family Health Survey (NFHS), Bihar also has the lowest percentage of women (59.7%) using hygienic menstrual products. This raises questions about the effectiveness of menstrual leave policies in addressing women’s health and employment outcomes. While direct causality is difficult to establish, the evidence suggests that the benefits of menstrual leave have not translated into improved workforce participation or better menstrual health outcomes in Bihar.

Challenges in Implementing Menstrual Leave in India’s Labour Market

The effectiveness of any menstrual leave policy will depend largely on the nature of employment in India. More than 50% of regular female workers in rural areas and 57% in urban areas are employed in jobs without written contracts. Furthermore, over 40% of women in regular employment, regardless of rural or urban settings, do not have access to any form of paid leave. This lack of job security and benefits underscores the limited bargaining power that many female workers have with their employers, making the implementation of menstrual leave largely irrelevant for a vast majority of women in India’s labour market.

Proponents of menstrual leave argue that it should be treated as a rights-based condition, necessitating flexible work conditions. One practical solution is allowing women to work from home during their menstrual cycles, thereby easing the strain on female employees while fostering shared responsibility for menstrual care with household members. However, such solutions demand significant behavioural changes, involving community sensitization and the inclusion of men in discussions about menstrual health.

The Role of Social and Cultural Reforms

The successful implementation of menstrual leave requires more than just policy changes. Cultural taboos and societal norms surrounding menstruation pose significant barriers to the acceptance of menstrual leave. Awareness campaigns and community-level sensitization programs can help break down the stigma around menstruation and promote gender-sensitive behaviour. However, long-term success depends on framing public policies that enshrine menstrual rights, backed by societal reforms.

India has seen success in gender-sensitive policies moderating entrenched social norms. The Hindu Succession Act (HSA), for example, played a pivotal role in advancing female autonomy by ensuring women’s inheritance rights to parental property. Drawing from this precedent, menstrual leave policies, if well-framed and implemented, have the potential to bring about long-term cultural and societal change.

The Supreme Court’s Position and Future Prospects

The Supreme Court of India has not entirely dismissed the idea of menstrual leave but has urged states to engage in dialogues with relevant stakeholders to design a model policy. This approach recognizes that menstrual leave cannot be viewed in isolation; it must be part of a broader strategy that encompasses legal reforms, community engagement, and cultural change. Female labour force participation varies significantly across states, with higher rates in the Northeast and Himalayan regions, and lower participation in the Indo-Gangetic plains. A tailored approach is needed: in states with higher female participation, emphasis should be placed on ensuring employer compliance with menstrual leave norms, while in states with lower participation, efforts should focus on breaking social taboos and promoting behavioural change.

Lessons from International Contexts

Countries like Indonesia and Spain have successfully implemented menstrual leave policies, but their contexts differ significantly from India’s. Both countries demonstrate higher levels of female agency, as seen in greater labour market participation and political representation. These factors may have contributed to more robust social and political support for menstrual leave policies. India, with its diverse social and economic landscape, will need a unique approach to successfully incorporate menstrual leave into its public policy framework.

Towards a Cooperative Solution for Women’s Welfare

Incorporating menstrual leave into public policy in India is expected to face several challenges. However, once implemented, it holds the promise of advancing women’s welfare significantly. Beyond enhancing female productivity, menstrual leave could improve employment outcomes and encourage greater female workforce participation. Achieving this will require a cooperative effort involving the State, political entities, communities, and comprehensive labour market reforms.

For menstrual leave policies to succeed, they must strike a balance between supporting women’s health needs and minimizing potential economic impacts. Policies must also be backed by robust efforts to challenge societal taboos and ensure that women’s rights are respected in both public and private spheres. Only then can India move closer to achieving true gender equality in the workplace.