PERIOD LEAVE FOR WOMEN: IS IT A VIOLATION OF RIGHT TO EQUALITY? [2020]

PERIOD LEAVE FOR WOMEN: IS IT A VIOLATION OF RIGHT TO EQUALITY? [2020]

Author- Ramya Ravi 
College- School of excellence in law

ABSTRACT

India, the country we live is known for its customs, traditional values, culture, and heritage. The path it is traveling through is phenomenal. The recent developments and progressions the country makes are blowing other countries. Despite all these astonishing achievements, the terms like “MENSTRUATION”, “PERIOD” are still met with the raised eyebrows, In the year 2017, “MENSTRUATION BENEFITS BILL” was introduced as a private bill by then Member of Parliament Shri. Ninong Ering in the Lok Sabha.

These menstrual leaves however going to provide better working facilities to female employees. Though Article 14 mandates that State shall not discriminate between similarity situated persons, but that does not mean that all persons should be subjected to similar treatment. The leave sanctioned to women during their menstruation need not be applied to all persons and noway it violates Article 14 of the constitution.

From a positivistic point of view, decision or action taken by State or its instrumental /agency to accord favorable treatment to a particular class of persons. Hence it is not violative of Article 14 of the Constitution. Article 15(3) extends to the entire field of state activity, including the field of public employment which has been specifically dealt with in Article 16. The Court stated that if a particular provision squarely falls within the ambit of Article 15(3), it cannot be struck down merely because it may amount to discrimination solely on the basis of sex. Sometimes transformation and acceptance are needed to survive. Adhering to the policies of the government will help to have a peaceful government and society.

Keywords – Article 14, Article 15(3), Menstruation Benefits Bill, 2017, Period leave, Female employees, Class of persons, Sex

INTRODUCTION

“When she bleeds the smells I know change colour. There is iron in her soul on those days. She smells like a gun.”

-Jeanette Winterson

India, the country we live is known for its customs, traditional values, culture, and heritage. The path it is traveling through is phenomenal. The recent developments and progressions the country makes are blowing other countries. Despite all these astonishing achievements, the terms like “MENSTRUATION”, “PERIOD” are still met with the raised eyebrows. There are no open discussions been made on this topic. Most of the people including women hesitate to have an open debate on it.

Mensuration is an inevitable biological process. Treating it as an offense is no longer acceptable. But it is also to be taken into fact that comparatively, the idea of people towards mensuration has taken a different path where positive reactions are being showered upon women. In the year 2017, “MENSTRUATION BENEFITS BILL” was introduced as a private bill by then-member of Parliament Shri. Ninong Ering in the Lok Sabha.

Section of 10 of the bill clearly states that any person whosoever denies leave to a woman during her mensuration or obstructs her from the entitlement of menstrual leave or denies to provide adequate rest and recreation facilities shall be punishable with imprisonment for a term not less than one month but may extend up to three months and fine from ten thousand to fifty thousand rupees.[1]

This bill was not welcomed by most of the people in India including the women to whom the benefits been provided. Period leave has always been a taboo. Women at the workplace feel difficult to work along with the pain. The Report concluded in 2019 reports that about 40% of the workforce in the world consists of women and more than half of them suffer from “DYSMENNORHEA” – pain during menstruation.[2]

Doctors all over the world compared period pain to heart attacks[3]. Such crucial pains must be dealt with carefully. Working without physical strength and mental peace eventually affects the work of both the woman and the organization she is working with. These menstrual leaves however going to provide better working facilities to female employees.

THE INITIATORS

The first legislative step was taken by the eastern state in Bihar in the year 1992 providing two days off for every menstruating woman in a month. A girls’ school in Kerala had sanctioned its student’s menstrual leave in the year 1912. Several other countries like Japan, South Korea, Indonesia, Taiwan took the initiative to grant period leaves. In the early 1920s, the Japanese government decided to sanction leave for the women who go through difficult times during their menstruation[4].

South Korea moved a step forward by providing additional pay under the umbrella of Article 71 of the Labor Standards Law if they do not wish to take the menstrual leave.[5]In Indonesia, Labor Act No. 13 in 2003 provides menstrual leave for a period of two days per month.[6]

period leave

INDIAN ORGANISATIONS’ IMPLEMENTATION OF POLICY

Devleena S Majumdar, President – People and Culture, Culture Machine in an interview stated that their initiative to introduce menstrual leave was celebrated by all the people in their organization. They were happy and proud. Looking into productivity she feels that everything is possible in this digital era. She believes that proper planning and succession plans will give out the best outcomes.[7]

Rohan Banzali, Co-founder and Director of Gozoop, he said that their policy smartly offers six additional paid leaves for their women employees. They also provide an ESS portal where the approval is automatic. This facility was created to make women feel comfortable without any sort of hesitation. Further, he added that his team was very supportive and trusted him[8].

Zomato, the food delivery organization recently allowed women and transgender people of its institution to take menstrual leave up to 10 days in a year. The chief executive officer said that no shame or stigma to be attached while applying for the leave.[9]

CRITICISMS

These initiatives by the Indian organizations were also faced by negative reactions and comments. It is normal that there will always be some criticisms spreading all over the world for all the good startups. Some people feel that this period leave policy is not embracing women any way but turns out to be a check on women’s working efficiency or as sexism. They presume it as a discriminatory measure rather than a medical necessity. Even a few feminists believe that this ‘period leave’ is a violation of equality in India.

IS IT A VIOLATION OF RIGHT TO EQUALITY?

ARTICLE 14

Article 14 of the Indian Constitution speaks about the right to equality. This means that the state shall provide equality and equal protection of the laws to any person within the territory[10]. The concept of equality is a positive concept. Equality is one of the magnificent corner-stones of Indian democracy[11]. The underlying object of Article 14 is to secure to all persons, citizens, or non-citizens the right to equality of status and opportunity referred to in the Preamble to our Constitution[12].

Article 14 of the constitution provides equal rights to person but it doesn’t mean that it is uniform. Some rights can be made available only to a particular gender and group. Treating it as a violation of the said article is strange. In the case of MG Badappanavar v State of Karnataka, the Supreme court reiterated that “ Equality is a basic feature of the Constitution of India and any treatment of equals unequally or unequal as equals will be a violation of the basic structure of the Constitution of India”[13].

Two concepts are involved in Article 14 :

  • Equality before law
  • Equal protection of the law

The second concept ‘equal protection of laws’, is a positive concept. It does not mean that identically the same law should apply to all persons, or every law must have a universal application within the country irrespective of differences of circumstances. This concept clearly explains the criticisms put forth in period leave. The period leave sanctioned to women during their menstruation need not be applied to all persons and in no way it violates article 14 of the constitution.[14]

Period leaves are can be provided only to the people who menstruate. The violation would have been accepted if the leave hasn’t been sanctioned to people who are capable of. What it postulates is the application of the same laws alike and without discrimination to all persons similarly situated. It denotes equality of treatment in equal circumstances. The girl or women at the workplace during menstruation undergo stress, pain, feel tired, and nauseated. The circumstance cannot be the same at all the time so different treatments should be provided accordingly.

Though Article 14 mandates that State shall not discriminate between similarity situated persons, but that does not mean that all persons should be subjected to similar treatment. From a positivistic point of view, decision or action taken by State or its instrumental /agency to accord favorable treatment to a particular class of persons.[15] Article 14 prescribes equality before the law. But the fact remains that all persons are not equal by nature, attainment, or circumstances, and, therefore, mechanical equality before the law may result in injustice.

Thus, the guarantee against the denial of equal protection of the law does not mean that identically the same rules of law should be made applicable to all persons in spite of differences in circumstances or conditions.[16] The varying needs of different classes or sections of people require differential and separate treatment. Thus article 14 clearly states that people differ by nature so providing them their rights is completely valid.

Article 15

Article 15 of the Constitution speaks about the prohibition of discrimination on the grounds of religion, race, caste, sex, or place of birth.[17] Period leave do not discriminate any person on the grounds of sex under article 15 of the constitution. Menstruation is a biological process. It is something that is natural and cannot be foreseen. Considering it as a violation and discrimination against men is not valid.

Article 15(3) of the Constitution shall not prevent any state from making any special provision for women.[18]

WHAT DOES THIS “SPECIAL PROVISION” FOR WOMEN MEAN?

This special provision means the state may make to improve women’s participation in all activities under the supervision and control of the state and be in the form of either affirmative action or reservation. The purpose of Article 15(3) is to eliminate all the socio-economic backwardness of women and to empower them. It also tries to bring equality to men and women. The object of the article is to strengthen the status and power of women. Providing leaves can help them to work efficiently in their upcoming days. These period leaves give them strength which is one of the objectives of Article 15(3).[19]

An issue similar to ‘period leave‘ was dealt with in the case of Sham Sher Singh vs the State of Punjab.[20] The case was filled as the male counterparts of the Punjab Educational Services were not given the same benefit as given to the women although both performed identically. The High Court held that the impugned rule under Article 15(3) holding that even though the discrimination was based on the ground of sex, it was saved by Article 15(3).

The court ruled that 15(3) could be invoked for construing and determining the scope of Article 16(2). According to the court, Article 15(3) extends to the entire field of state activity, including the field of public employment which has been specifically dealt with in Article 16. The Court stated that if a particular provision squarely falls within the ambit of Article 15(3), it cannot be struck down merely because it may amount to discrimination solely on the basis of sex.

period leave

ACTS ENACTED TO PROTECT WOMEN IN INDIA

  • Protection of Women from Domestic Violence Act, 2005
  • Indecent Representation of Women (Prohibition) Act,1986
  • Dowry Prohibition Act,1961
  • Maternity Benefit Act,1861 
  • Medical Termination of Pregnancy Act,1971
  • Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
  • Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

These are some of the acts enacted for the protection of women in India. No offenses were made while enacting these laws. But why so many discomforts while sanctioning leave during menstruation. It’s because of the ground on which the leave has been sanctioned. Still, many women are not feeling free to talk about this. In fact, reports show that women are more agitated. Granting leave during menstruation should not have been arbitrary itself. It is something that is basic and valid.

Where the female employee’s grievance was the writing of a sensuous letter expressing love to her, admiring her qualities and beauty, and extending unsolicited help, it was held that the female employee’s grievance ought to have been locked into according to the directions given in Vishaka Case.[21] The guidelines provided in the Vishaka case can be taken as the best example.

The guidelines were provided as the women couldn’t tolerate the harassments that were done to her. Similarly working or going to schools and colleges during menstruation is seen as an ordinary scenario. We were brought up in a way to adapt to the prevailing situations. Why should we? The laws and acts are enacted to protect and safeguard us from such unfair situations.

POSITIVE IMPACT

Introducing such bills will create a larger impact in the minds of people. It is a chance to eliminate all the odds that are put forth under the issue. This policy is for all women irrespective of the work they do. The pain of women during menstruation is always seen as exaggerating the pain. Society feels that women is being domestic. This is one of the negative comments which is not at all acceptable.

The pain varies from one individual to the other. For some, it even bleeds for more than 5 days whereas some are fortunately ended up with three days. The pain and agony cannot be put in words. They tend to be in a pathetic situation where the cramps on one side and the work pressure on the other side will really be unmanageable.

The younger generation is now dealing with the problem of PCOS (Polycystic ovarian syndrome) or PCOD (Polycystic Ovarian Disorder) which simply means an irregular period. Here biologically speaking the body will not be able to convert glucose into energy[22]. This happens because of the work pressure and stress. We have no idea how mothers and daughters worry about this. The life of women is not as easy as we all think. Under this situation, introducing policies like period leave will help to understand the pain of women. However here the woman doesn’t anticipate sympathy or empathy but just to value the feelings and pain of the co-human being.

THE FEAR OF MISSING OUT

A section of women is not in favor of this policy it is because they feel discomforted to deal with the unfair treatment. This clearly proves that not all women react to an issue in the same way. A section of society is against the policy stating that it violates the right to equality but there are women who are worried about the mistreatment. In some cases, women fell humiliated to show that she was on her period.

Can we blame them? … No.

This sort of behavior can be completely abolished through these policies. We are in the stage of progression, at this stage feeling humiliated or attaching stigma to expose ourselves will no longer going to help us in any way. Both men and women in society must take it a moment to appreciate rather than fearing out or violating it.

CONCLUSION

This article clearly shows that period leave for female is necessary and though it may violate the right to equality, certain aspects cannot be looked at an equality perspective but with an open heart and feelings in it. This period policy nowhere determines women as the weaker sex rather it shows the progressions and advancements we are going through. The society we are in and the conversation and dialogues we make influence more than the rule of law. 

This policy absolutely promotes gender equality and will help to have a healthier environment. And also serious debates should happen on the matter considering menstruation as a biological process. Relief to an individual in need is as important as equality. Being equal doesn’t mean that the same laws to be followed by all. Sometimes transformation and acceptance are needed to survive. Adhering to the policies of the government will help to have a peaceful government and society. Menstruation is not an illness but a biological process.

Menstruation is something that is inescapable. Sick leaves provided cannot be taken as period leaves. The bold ladies who take care of both their families and the workplace needed adequate care and happiness. This heated topic of discussion would invite problems from all sides of the corner. It is we the citizen of the country should take in a smoother and better manner.


REFERENCES

[1]https://www.financialexpress.com/india-news/two-days-leave-during-periods-parliament-may-discuss-menstruation-benefit-bill-for-the-1st-time-know-what-it-is/999091/

[2]https://www.webmd.com/women/menstrual-cramps#1

[3] https://www.elle.com/uk/life-and-culture/articles/a41956/doctors-rule-menstrual-cramps-as-painful-as-heart-attacks/#:~:text=Menstrual%20cramps%2C%20or%20Dysmenorrhea%20as,’https://www.elle.com/uk/life-and-culture/articles/a41956/doctors-rule-menstrual-cramps-as-painful-as-heart-attacks/#:~:text=Menstrual%20cramps%2C%20or%20Dysmenorrhea%20as,’

[4] International Labour Organization. “National Labour Law Profile: Japan”. asianfoodworker. “Comparison of the Japanese Laws and Model CBA of UI ZENSEN on Maternity Protection” (PDF). Archived from the original (PDF) on 2007-06-26. Retrieved 2011-06-13.

[5] joongangdaily. “Once again, court orders menstrual leave payout”.

[6] Govt. of Indonesia. “Labour Act”. Archived from the original on 2011-10-04.

[7] https://www.mansworldindia.com/uncategorized/in-conversation-with-the-pioneers-who-have-implemented-menstrual-leave-policy-in-their-organisations/

[8] https://www.mansworldindia.com/uncategorized/in-conversation-with-the-pioneers-who-have-implemented-menstrual-leave-policy-in-their-organisations/

[9]https://www.thehindu.com/news/national/zomato-introduces-period-leave-for-employees/article32308642.ece#:~:text=Starting%20today%2C%20all%20women%20(including,applying%20for%20a%20period%20leave.

[10] http://www.bareactslive.com/ACA/ACT401.HTM

[11] AIR 1993 SC 477 : 1992 SUPP (3) CC 212

[12] Re Special Reference Number 1 of 2012, (2012) 10 SCC 1 (77) : 2012 AIR SCW 6194 : (2012) AIR SCW 6194 : (2012) 9 SCALE 310

[13] AIR 2001 SC 260, at 264 : (2001) 2 SCC 666

[14] AIR 1961 SC 1245 : (1962) 1 SCR 151 , AIR 1961 SC 1657 : (1962) 2 SCR371

[15] (2014) 13 SCC 358 : 2013 (6) SCALE 408

[16] AIR 1951 SC 41 : 1950 SCR 869

[17] http://www.bareactslive.com/ACA/ACT401.HTM

[18] http://www.bareactslive.com/ACA/ACT401.HTM

[19] DPSP XXXIV

[20] AIR 1970 P & H 372

[21] (1997) 6 SCC 241 : AIR 1997 SC 3011

[22] https://food.ndtv.com/health/the-right-diet-can-go-a-long-way-in-helping-you-with-pcod-772795#:~:text=PCOD%2C%20or%20Polycystic%20Ovary%20Disease,acne%20and%20excessive%20hair%20growth.

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