Supreme Court declines PIL seeking nationwide paid menstrual leave policy

The Supreme Court refused to entertain a PIL seeking a nationwide policy for paid menstrual leave for women students and workers, warning that mandatory provisions could discourage hiring. The court directed authorities to consider the petitioner’s representation and examine the issue.

New Delhi: The Supreme Court on Friday refused to entertain a PIL seeking a nationwide policy providing paid menstrual leave for women students and workers, observing no one would give them jobs in such a scenario and that such a provision would unintentionally reinforce gender stereotypes.

The top court, however, asked the Centre and competent authorities to consider the representation of the PIL petitioner and examine the possibility of framing a policy on menstrual leave after consulting all relevant stakeholders.

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A bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi observed that while the intent behind the petition might be welfare-oriented, the practical reality of the job market could lead to “counter-productive” outcomes for women.

“These pleas are made to create fear, to call women inferior, that menstruation is something bad happening to them… this is an affirmative right… but think about the employer who needs to give paid leave,” the bench observed.

Senior advocate MR Shamsad, appearing for the petitioner, said the Karnataka government has formulated a policy to allow menstrual leave and some private organisations are also providing this facility.

“Voluntarily they are giving, then it is excellent. That is a very good thing. But the moment you introduce it as a compulsory condition in law, you do not know the damage it will do to the career of women. Nobody will give them responsibilities, even in judicial services, a normal trial will not be assigned to them,” the CJI said.

During the hearing, the bench highlighted the risk of “unintended consequences”, suggesting that a mandatory leave policy might discourage private employers from hiring women.

“The moment you introduce it as a compulsory condition in law, you do not know the damage it will do to the career of women,” CJI Kant remarked.

“Nobody will give them responsibilities… This can be harmful to their growth,” the bench added.

Justice Bagchi echoed these concerns from a business perspective, noting that affirmative action is constitutionally recognised but must be balanced against market realities.

“Look at the practical reality in the job market. The more unattractive the human resource, the less is the possibility of assumption in the market. Will any employer be happy with the competing claims of other genders,” Justice Bagchi asked.

The bench was hearing a PIL filed by Shailendra Mani Tripathi.

At the outset, the bench raised the issue of locus of the PIL petitioner and pointed out that no woman herself has approached the court.

It was the third petition filed by Tripathi on the same issue.

The first petition was dealt by the bench in 2023 and it allowed the petitioner to give a representation before the Union Ministry of Women and Children.

The petitioner approached the court in 2024 again on the ground that the Centre did not respond to his representation. The PIL was disposed of in July 2024 again with the direction to the government to take a decision.

“These petitions are deeply rooted, designed PILs. You are not a bona fide petitioner. This is basically only to create a type of impression in young women that you still have some natural issues and you are not at par with male persons and you cannot work like them during a particular time,” the bench observed initially.

Shamshad replied that while Odisha has a policy since 1992, Karnataka recently allowed such a leave policy, and Kerala allowed relaxation in schools. He added that many private organisations are voluntarily allowing period leave.

“The petitioner has made a representation to the authority. It seems to us that whatever was required to be done at the end of the petitioner, he has done for the welfare of young women. It is not necessary for the petitioner to approach the court time and again and seek a positive mandamus.

“We direct that the competent authority shall consider the representation directed to be considered by this court by order dated February 24, 2023, and July 8, 2024, for modelling a policy in consultation with all,” the bench ordered.