‘Don’t know amount of damage it will do’: Supreme Court says mandatory menstrual leave could hurt women’s careers

The Supreme Court on Friday reiterated its concern that makingmenstrual leave for women employeesmandatory could disadvantage women, as it could make employers wary of recruiting them.

A bench of Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi said it was better left to the government to take a call on the matter.

“Affirmative action in respect of women is constitutionally recognised.

But look at the practical reality in the job market.

The more unattractive the human resource, the less is the possibility of consumption in the market.

These are also factors to be looked into…You are right, we will see it from the rights regime.

But look at it from the business model.

Will an employer be happy with the competing claims of other genders?” said Justice Bagchi.

The bench initially questioned the locus standi of the petitioner, Shailendra Mani Tripathi, and wondered why no woman had approached the court.

Tripathi had moved the court twice in the past.

The first one was disposed of in February 2023, allowing him to give a representation to the Centre.

He moved the court again in 2024, contending that the government had not responded to his representation.

The court then asked the government to take a policy decision.

On Friday, the CJI said, “You are not a bona fide petitioner.

This is only to create a type of impression in young women thatyou still have some natural issues, and you are not at par with male persons, and you cannot work like them during a particular time.”
‘Nobody will give them responsibilities’
Appearing for the petitioner, senior advocate M R Shamshad said Bihar, Karnataka, and Odisha had menstrual leaves while Kerala had allowed it in schools.

He added that some private institutions, too, had allowed it.

The CJI said it was excellent if they were giving leave voluntarily.

“That is a very good thing…But the moment you introduce it as a law, as a compulsory condition, you do not know the amount of damage you will do to their career.

Nobody will give them responsibilities.

Not even in judicial services, a normal trial will be assigned to them,” he added.

Creating a right to take leave for two days every month may deter the entire private sector, the CJI said.

The counsel urged the court to at least ask the government to respond.

Justice Bagchi said, “It’s very difficult to wade into what is weighing with the government in not coming up with a policy which is of affirmative nature.

It is for the government to take a call.”
Disposing of the petition, the court said, “The petitioner has already brought to the notice of the authorities the issues sought to be raised in this petition.

It seems to us that whatever was required to be done at the end of the petitioner, he has done, presumably for the welfare of young working 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 observations made by this court in its orders dated February 24, 2023, and July 8, 2024…for framing a model policy in consultation with all stakeholders.”