Supreme Court refuses to impose mandatory menstrual leave, orders govt to develop policy

India’s Supreme Court on Monday heard a case over providing menstrual leave to women, raising concerns that the mandatory leave could potentially lead to women being excluded from the workforce.

A bench comprising Chief Justice DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra emphasised that the matter was a matter of policy and not within the purview of the judiciary. The court directed the central government to frame a model policy through consultations with state governments and relevant stakeholders.

“How will this leave encourage more women to work?” the court asked the applicant, expressing concerns that enforcing such leave could result in “rejecting women from the labor market.”

“This is really an aspect of government policy and the courts should not be concerned with it,” the judge said.

The court noted that the petitioner had filed the application with the Centre in May 2023, but noted that the issue involved complex policy considerations. It therefore held that there was no basis for judicial intervention at this stage.

“Because these issues involve multiple state policy objectives, there is no reason for this court to intervene in light of our previous ruling,” the bench said.

The court expressed concerns that a court order ordering menstrual leave could be counterproductive and discourage employers from hiring women.

However, the judges allowed lawyer Rakesh Khanna, representing the plaintiff, and lawyer Shailendra Tripathi to approach the Secretary, Ministry of Women and Child Development and Additional Solicitor General Aishwarya Bhati.

“We urge the registrar to examine the matter at a policy level and take a decision after consultation with all stakeholders and consider whether a model policy can be developed,” the court ordered.

The court also clarified that the consultation process conducted by the Centre will not prevent individual states from taking independent steps in the matter.

Earlier, the Supreme Court had dismissed a plea seeking leave on grounds of menstrual pain for students and working women across India, saying the issue was a matter of policy and suggesting that the matter be taken up with the Centre. The petitioner noted that the Central government has not taken any decision so far.

The court directive requires the Ministry of Women and Child Development to consider the issue and develop appropriate policies in collaboration with stakeholders.