Between Protection and Prejudice: The Legal Dilemma of Menstrual Leave in India

I. Introduction

In light of the legal and policy discussion in India with regards to work place rights and gender equality, menstrual leave is an emerging legal issue. Menstrual leave is a form of leave given to women workers when on their period facing physical pain or medical reasons, while the debate prevailing in today’s era in India is whether it should be recognized legally, and if yes, then whether it should be paid or unpaid. The purpose of menstrual leave is to provide off to employee from work when they are physically uncomfortable and maintain their dignity while working. While several countries and private companies have implemented policies allowing for menstrual leave, there is no uniform national policy exist regarding menstrual leave in India. This issue has also been further discussed in the recent judicial and policy forums.

Menstrual leave presents a very complicated legal situation. Some people believe menstrual leave may help achieve equality by addressing biological differences and supporting employee well-being. Others believe that giving leave could have negative effects like discrimination against women who apply for jobs and reinforcing stereotypes about gender.

This creates a problem between protecting people rights and treating everyone equal under the law. Considering these points this paper looks at the laws in India regarding menstrual leave. It checks the basis, different opinions and tries to figure out if giving menstrual leave would help or hurt gender equality at work. The focus is on leave, it’s difficulty in implementation and impact on equality.

Menstrual leave is an issue that needs careful consideration. It involves balancing interests and values with goal to promote fairness, equality and well-being in the workplace.

II. Legal Analysis

A. Constitutional Framework and Gender Equality

Menstrual leave is one of the crucial things to consider when India seeks constitutional guarantees regarding equality and gender justice. The first important point that Article 14[1] lays down is equality before the law, which means there should be no unreasonable or arbitrary classification. In this context the question of menstrual leave is one of whether it is justified to treat differently to achieve substantive equality. On the other hand constitution empowers the State to make special provisions for women under Article 15(3)[2], which recognizes that formal equality does not always improve existing social and biological disadvantages. This is part of the argument favouring menstrual leave, which has instead been portrayed as an anti-equality measure. Simultaneously, the right to life and personal dignity guaranteed by Article 21[3] provide health and well-being in the workplace and Article 42[4] provide just and humane condition of work. The Maternity Benefit Act of 1961[5] shows that Indian law already accepts that biological differences are a reason, for giving special protection to women at work, Menstrual leave follow same reasoning but the challenge is to balance these protections against the risk that such measures inadvertently reinforcing gender-based distinctions. Thus, the constitutional architecture reflects a complicated tension between guaranteeing equality and accepting difference.

B. Protection vs Prejudice: The Core Debate

The problem is not only about menstrual leave, it is more about implementation of leave without causing unintentional outcomes that can create issue under workplace. The purpose of menstrual leave proposal is to respect biological differences between man and woman. In ground reality so many workplace exist who don’t take enough measures to prevent gender based discrimination for particular section of workers. In many industries that run on the basis of competition, employers will likely react to additional employment-related obligations (such as those required under a mandatory menstrual leave policy) by adopting informal hiring practices that place an increased value on regularity of attendance. This could create de facto barriers to entry into their workforce for some women who experience symptoms of menstruation at work.

On 2024 case of Shailendra Mani Tripathi v Union of India[6] where the top court stepped back from ordering menstrual leave. Instead hand it over to policy makers. What worried them? Forcing rules too fast might create unfair and stressful situation in workplace .Employers, fearing extra burdens, may simply avoid hiring women.

Still, skipping these steps altogether can miss real demands at work, especially where health support is less. What matters now comes between protecting people and possibly increasing unfair views. They ought to build place fitting fairness alongside daily job realities.

C. Ground Realities Of Unorganised Sector Challenge

Any discussion around the topic of menstrual leave in India should keep in mind the structure of the country’s labour force, the majority of Indian women are employed in the unorganised sector. Employment in the unorganised sector refers to work that is not regulated by the state, lacks proper legal contracts and does not have any recognised methods of dealing with any workplace disputes as per labour laws. This means that any form of protection or entitlement would apply solely to the organised sector, thereby greatly limiting their scope and impact. This trend can be observed in all welfare policies relating to labour, whereby any measure is highly effective in formal employment sector but fails when applied to the informal sector. Thus, even though legislation regarding menstrual leave might be passed, it is unlikely that it’s effects will reach significant percentage of women workers.

D. Implementation Challenges Specific to Menstrual Leave

The problem with giving women leave for their period is quite different from things that companies done to help their employees. Pregnancy is a periodic biological condition. Periods happen every month. This create problem – How to identify the time of leave? Whether woman give self report or checked by doctor? Both ways came with complexity as Periods do not come at fixed dates and surrounded with other problems too.

 Law like Menstrual Leave and Hygiene Bill 2024 that try to protect women came with loopholes of not thinking about how they will actually work in real life especially in small companies that do not have a human resources department. This shows that the problem is not about making a law but about making a system that is fair and respectful. We need to make sure that women can get the leave whenever they needed without causing problems at work. Menstrual leave needs to be handled in a practical and respectful manner.

E. Comparative Implementation Models

Menstrual leave is something that is being talked about in countries. For example- Japan and South Korea[7] have a system where women can take leave without needing a doctor note. They just have to tell their workplace that they need to take the day off. This system works because it is based on trust.

On the other hand Spain has a different approach. In Spain women need to get a doctor note to prove that they are taking leave for a valid reason. These different implementation methods show us that each country make policy on the basis of their country’s social atitute, labour structure etc. A Major issue for india is their uneven implementation of labour law and social stigma. But with the changing environment india may adopt such policies with flexible approach suited to its own social and workplace conditions.

III. Supporting Authority

A. Legislative and Policy Framework

India does not have a uniform law on menstrual leave but some states have their own rules like Bihar[8] and Karnataka[9] have started giving leave. Bihar provide it for government employee allowing limited menstrual leave benefit within the public sector and Karnataka has recently introduced a menstrual leave policy providing one day of paid menstrual leave per month (up to 12 days annually) to women employees aged 18–52, including permanent, contractual, and outsourced workers, across covered establishments in the organised sector. This shows that people start prioritising health at work but it is still not available to everyone.

Some private companies like Zomato are also giving leave.[10] This is happening even though there is no compulsory law regarding leave. It shows that some companies are willing to do this on their own.

There is a plan called the Menstrual Leave and Hygiene Bill, 2024.[11] This law would give women paid leave and make sure they are not treated unfairly.. This law has not been passed yet due to implementation difficulties of maintaining fair and non-discriminatory workplace.

B. Judicial Position

In the case of Shailendra Mani Tripathi v Union of India[12], the instance of public interest litigation initiated by Shailendra Mani Tripathi. The Supreme Court has always considered leave as a matter of policy and not as a directive issued by the court.

The petitioners believed that menstrual leave was essential because it would enable dignity and health equality in the workplace. The union government was afraid that compulsory menstrual leave would harm women’s employment opportunities.

The Court listened to both sides and decided not to make a uniform rule .It said that this is something needs to be discussed and decided by the people involved through policies. The Court is being careful about getting involved in economic and gender issues because the good things that might happen are closely tied to the practical effects and their structure. The Supreme Court thinks that menstrual leave policies should be made by the people who are affected by them including the Union Government and women groups. Menstrual leave is an issue that needs to be considered carefully and the Court is leaving it up to the policymakers to decide. Recently on march 13, 2026 supreme court refuse to make compulsory menstrual leave in order to protect discrimination towards woman. Such situation may create female image as liability at workplace which can hinder their career growth. On the other hand, Karnataka High court  in Chandravva Hanamant Gokavi v State of Karnataka[13] ordered implementation of menstrual leave policy,2025 and held that menstrual leave is the important part of right to life and dignity under article 21. Supreme court stands that state are free to make their own menstrual leave policy.

IV. Policy Recommendations and Way Forward

A balanced approach can be follow while developing a policy on the matter of menstrual leave. Instead of a strict rule that must be followed at all times, an open-ended policy approach can be follow where companies will have the option to offer other forms of support, like working from home, flexible scheduling, or reduced workload during menstruation period. Under the provisions of the law, such an option will allow for addressing the health needs of individuals without having a one-size-fits-all approach.

V. Conclusion

The main discussion about menstrual leave in India is about finding a balance between taking care of people and treating everyone equally at work. Some states and companies like Zomato have their own menstrual leave policy. Menstrual leave will provide dignity and substantive equality but might promote unequal hiring at workplace.

Judges in the case of Shailendra Mani Tripathi v Union of India shows that court has adopted cautious approach by making it a policy matter rather than imposing one legal framework. So, it might be better to have a system that’s flexible and considers the specific situation.

Comparative analysis shows that menstrual leave structure is also dependent upon social condition and mindset of country. Therefore, instead of one rigid law India may follow flexible approach at different workplace that consider employee welfare while addressing practical workplace concerns.

References 

[1] Constitution of India, art 14

[2] Constitution of India, art 15(3)

[3] Constitution of India, art 21

[4] Constitution of India, art 42

[5] Maternity Benefit Act 1961 (India)

[6] Shailendra Mani Tripathi v Union of India 2024 SCC OnLine SC 1694.

[7] Anshul Prakash and others, ‘Looking Beyond the Law: The Case of Menstrual Leave in India’ (2023) SCC OnLine Blog Exp 19

[8] ibid

[9] Chandravva Hanamant Gokavi v State of Karnataka WP No 109734 of 2025 (Karn HC, 15 April 2026).

[10] Deepinder Goyal, ‘Introducing Period Leaves for Women’ (Zomato Blog, 2020) <https://www.zomato.com/blog/period-leaves> accessed 9 May 2026

[11] Menstrual Leave and Hygiene Bill 2024 (India)

[12] Shailendra Mani Tripathi (n 6)

[13] Chandravva Hanamant Gokavi (n 9)