The Problem:

Women face enormous difficulties during their menstrual period, the most excruciating being “Primary Dysmenorrhea” or menstrual cramps. Severe cramping, heavy bleeding, nausea and migraines are also associated with menstruation, causing tremendous difficulty and trauma to women at the workplace.
Initially frowned upon as a “women’s dilemma”, the hardships faced by women during the menstrual cycle have become a rallying cause for prominent social activists to call for “menstrual leave” on the lines of maternity leave. Currently menstrual leave is available to working women in Japan, South Korea, Taiwan and certain provinces of China.

Directive Principles of State Policy:
Coming to India, just as the Maternity Benefit Act of 1961 entitles pregnant women to maternity leave. Why not pass a similar law or amend the Act and provide for menstrual leave also. It may be worth noting that the Directive Principles of State Policy enshrined in the Constitution of India contain elaborate provisions permitting the State to enact laws for the welfare of women workers. Under Article 38(2) of the Directive Principles of State Policy, the State is duty bound to minimize inequalities in income and opportunity among different classes and groups. Under Article 39 the State shall work to ensure that both men and women have the right to adequate means of livelihood, with Article 39(d) envisioning equal pay for equal work. Finally Article 42 of the Constitution makes it the duty of the state to ensure just and humane conditions of work and for maternity relief.

Time to Pass a Law:
A plain reading of the Directive Principles, especially Article 42, reveals that nothing prevents the Parliament of India from enacting a law entitled working women to menstrual leave. While the Directive Principles of State Policy are themselves not enforceable in any court of law, any law passed to enforce them will be upheld as constitutionally valid. Therefore were the Parliament to pass a law regarding menstrual leave, the Indian Courts would unequivocally accept it as constitutional.
With rising social awareness about the hardships faced by women in the workplace, there is a gradual realisation among the public that menstrual problems cannot be simply brushed under the carpet. They must be addressed in the public forum by passing a law entitling women to menstrual leave. All eyes must now turn towards the Parliament which, having enacted the Maternity Benefit Act in 1961, is at an opportune moment to undo the injustice that has plagued women since time immemorial.

 

Abha Singh, 3/17/2019 12:00:00 AM


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