India: The Case for a National Menstrual Leave Framework

Introduction

“Men and women stand equal in the eyes of the law; yet, they are biologically distinct. To acknowledge such differences, particularly in matters concerning health, dignity, and bodily autonomy, is not to transgress the guarantee of equality, but to give it substantive meaning.”

Despite the biological reality of menstruation and the varying degrees of discomfort and associated health conditions, India lacks a comprehensive national framework for menstrual leave. As a result, millions of people who menstruate navigate their workplaces without formal recognition of this recurring biological need.

This article examines the constitutional foundations, judicial pronouncements, legislative developments and policy considerations supporting the introduction of a uniform national menstrual leave framework in India.

Constitutional Foundation and Judicial Recognition

The Constitution of India provides a strong foundation for menstrual leave legislation.

Article 14 guarantees equality before the law and equal protection of the laws. Article 15(1) prohibits discrimination on the grounds of sex, while Article 15(3) empowers the State to make special provisions for women and children.

Article 21 protects the right to life and personal liberty, which the Supreme Court of India has progressively interpreted to include the rights to dignity, health and a safe workplace. Article 42 further directs the State to ensure just and humane working conditions.

Taken together, these constitutional provisions create a foundation for recognising and accommodating biological realities that affect workplace participation.

Indian courts have progressively expanded the understanding of dignity, equality and bodily autonomy through several landmark judgments.

In Vishaka, the Supreme Court held that the right to life under Article 21 includes the right to a safe and secure workplace. The Court also observed that the fundamental right to pursue an occupation under Article 19(1)(g) depends on the availability of a safe working environment.

Although Vishaka specifically addressed workplace sexual harassment, its underlying principles of gender equality and an enabling working environment extend to menstrual health. A workplace that fails to accommodate menstruation cannot be considered truly safe or dignified.

Similarly, in the landmark privacy judgment of Puttaswamy, the Supreme Court affirmed that decisions concerning one’s body, including reproductive health, are protected under Article 21. Menstrual leave, which enables individuals to manage their menstrual health without workplace penalties, advances the principles of bodily integrity and dignity recognised in that judgment.

However, in Shailendra Mani Tripathi, the Supreme Court declined to establish a nationwide paid menstrual leave policy, observing that the matter involved multiple policy considerations requiring attention from the Union and State governments. The Court accordingly directed the Union Government, States and Union Territories to formulate appropriate menstrual leave policies.

Legislative and Policy Developments

Although India has yet to introduce comprehensive national legislation on menstrual leave, several legislative proposals have emerged over the past decade.

At least six private members’ bills have been introduced in the Lok Sabha, reflecting growing recognition of menstrual health as a workplace issue.

In 2017, Shri Ninong Ering introduced the Menstruation Benefits Bill, 2017, proposing two days of paid menstrual leave per month for women, including students.

The following year, Dr Shashi Tharoor introduced the Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018, which included provisions requiring public authorities to provide free sanitary pads on their premises.

In 2019, Member of Parliament S. Jothimani introduced the Right to Menstrual Hygiene and Paid Leave Bill, 2019, proposing three days of paid leave during menstruation for women employed in government-registered establishments.

Further proposals followed in 2022, when Shri Hibi Eden introduced the Right of Women to Menstrual Leave and Free Access to Menstrual Health Products Bill, 2022. This proposed three days of paid menstrual leave per month alongside free access to menstrual health products.

More recently, Dr Kadiyam Kavya introduced the Menstrual Benefits Bill, 2024, proposing four days of paid menstrual leave, while Smt Shambhavi introduced the Menstrual Leave and Hygiene Bill, 2024, addressing paid leave and access to menstrual hygiene products.

None of these bills has been enacted. Their repeated introduction, however, demonstrates continued legislative interest in recognising menstrual health within India’s employment framework.

State-Level Initiatives

In the absence of national legislation, several Indian states have introduced their own measures.

Bihar has provided female government employees with two days of menstrual leave per month since 1992, making it one of India’s earliest examples of formal menstrual leave provision.

Kerala introduced two days of menstrual leave per month in Industrial Training Institutes across the state. It also revised university attendance requirements, reducing the minimum attendance threshold to 73% to accommodate students taking menstrual leave.

Odisha provides female state government employees aged up to 55 with 12 additional days of casual leave annually, equivalent to one day per month.

Sikkim introduced a menstrual leave provision through its High Court, allowing women employed in the High Court registry to take two to three days of leave per month.

Karnataka has taken a particularly significant step by becoming the first Indian state to extend menstrual leave provisions to both government and private sector employees.

Its policy provides one day of paid menstrual leave per month, amounting to 12 days annually, for women aged between 18 and 52. Importantly, the provision extends to permanent, contractual and outsourced employees.

Karnataka’s approach represents an important development in expanding menstrual leave beyond public sector employment.

International Comparison: Spain’s Approach to Menstrual Leave

Spain became the first European country to introduce statutory menstrual leave legislation in 2023.

Its framework provides three to five days of paid leave per month for employees medically diagnosed with dysmenorrhea, with the associated costs borne by the social security system rather than individual employers.

This funding model offers an interesting approach for countries considering similar legislation.

By placing the financial responsibility on social security rather than individual businesses, the Spanish model seeks to address concerns about additional employer costs while reducing the potential for discrimination in recruitment and employment decisions.

For India, where businesses vary considerably in size, structure and financial resources, alternative funding arrangements could form an important part of discussions about introducing a national framework.

The Path Forward: Key Considerations for a National Framework

Several important considerations should guide the development of a comprehensive national menstrual leave policy in India.

1. Inclusive Terminology

Legislation should adopt inclusive language, referring to “employees who menstruate” rather than relying exclusively on gender-specific categories.

This approach would align with the principles recognised in National Legal Services Authority and help ensure that menstrual leave provisions reflect the diverse circumstances of those who require them.

2. Self-Declaration and Privacy

A national framework should allow employees to access menstrual leave through self-declaration, without requiring medical certification.

Such an approach would protect individual privacy and dignity, consistent with Article 21 and the principles recognised in Puttaswamy.

It would also reduce unnecessary administrative requirements and help employees access leave without feeling compelled to disclose sensitive personal health information.

3. Comprehensive Employment Coverage

Following Karnataka’s model, national legislation should extend to employees across both the public and private sectors, including permanent, contractual and outsourced workers.

Limiting protection to government employees, as several existing state policies do, leaves a substantial proportion of India’s workforce without equivalent recognition or support.

A consistent national framework would help address these disparities and establish minimum standards across different employment arrangements.

4. Flexible Implementation

A national framework should allow employers some flexibility in how menstrual leave is administered, while maintaining mandatory minimum standards.

Two potential approaches are:

• Expanded casual leave: Providing additional casual leave days without requiring employees to disclose the reason for their absence, thereby offering greater privacy.

• Dedicated menstrual leave: Establishing a distinct leave category that explicitly recognises menstrual health and helps normalise discussions about menstruation in the workplace.

Both approaches have been considered in a white paper released by the Supreme Court.

Allowing employers to select the model best suited to their organisational circumstances could support implementation while preserving the underlying objective of ensuring meaningful menstrual leave protection.

5. Workplace Awareness and Sensitisation

Legislation alone cannot eliminate the stigma surrounding menstruation.

Employers should therefore be required to conduct regular awareness and sensitisation programmes addressing menstrual health, workplace equality and employee rights.

Such initiatives would help challenge misconceptions, encourage greater understanding and create an environment in which employees can exercise their rights without fear of judgement, disadvantage or retaliation.

Conclusion

India’s constitutional framework, evolving judicial interpretations and increasing legislative activity collectively support the case for comprehensive national menstrual leave legislation.

While individual states have introduced important measures, the absence of a uniform national framework continues to create inconsistencies in workplace protection.

Karnataka’s menstrual leave policy offers a practical model for wider implementation, particularly through its inclusion of private sector employees and reliance on self-declaration.

International approaches, including Spain’s social security funding model, provide additional perspectives on how legislation might balance employee welfare with the practical concerns of employers.

India now stands at an important juncture in recognising menstrual health as an integral part of workplace equality.

Bridging the gap between constitutional principles and everyday workplace experiences will require a consistent, inclusive and practical national approach.

Menstrual leave is not simply a workplace benefit or concession. It is an issue closely connected to the fundamental principles of dignity, equality, health and non-discrimination.

By Majmudar & Partners, India, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact india@transatlanticlaw.com

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