INTRODUCTION
“One is not born, but rather becomes, a woman.”
― Simone de Beauvoir, The Second Sex1
Picture a woman sitting at her office desk on a Monday morning. She has been in pain since Sunday night a deep, twisting cramp in her lower abdomen that makes it difficult to sit upright. She has taken two painkillers. They have taken the edge off, but not the pain. She has a meeting in thirty minutes. She cannot miss it. She manages. She always manages. She has been managing, every single month, for the past twelve years of her working life.
Now picture her male colleague, who has a minor headache. He mentions it to his manager, gets a knowing nod, and is told to go home early if needed. Nobody questions this. Nobody should.
The difference between these two situations is not a matter of one person being stronger. It is a matter of one person having a legal framework that acknowledges her physical reality, and the other being asked to pretend hers does not exist. The woman with menstrual cramps will not be going home early. There is no policy that says she can. There is no law that says she should. And if she brings it up, she risks being seen as weak, as making excuses, as confirming every unconscious bias her employer has ever held.
This paper is about that gap between what the Constitution of India promises women and what the law actually delivers to them every month. India’s Supreme Court has been asked three times whether the law should change. Three times, it has declined to issue a mandate.2 The most recent dismissal, on 13 March 2026, came with the Chief Justice’s warning that making menstrual leave compulsory would mean “nobody will give women jobs.”3 That remark tells us something important about how deeply the fear of women’s bodies being “a problem” is embedded even in India’s highest court.
This paper does not accept that framing. It argues the opposite: the fear of discrimination is not a reason to deny rights. It is a reason to prohibit discrimination. And it argues with the support of constitutional text, judicial precedent, India-specific data, real women’s experiences, and thirty years of evidence from Bihar that India must enact comprehensive menstrual leave legislation without further delay.
THE HUMAN AND EMPIRICAL REALITY: WHAT THE NUMBERS TELL US
“If men could menstruate, it would become an enviable, boast-worthy masculine event.”
― Gloria Steinem, If Men Could Menstruate4
Before we can talk about law, we need to talk about what we are actually asking women to manage. Menstruation is not, for most women, simply a mild monthly inconvenience. Dysmenorrhea painful menstruation which affects between 45% and 95% of menstruating women. For 10–15%, the pain is severe enough to prevent normal functioning. Conditions like endometriosis, PCOS, fibroids, and premenstrual dysphoric disorder (PMDD) cause recurring, debilitating symptoms: migraines, back pain, vomiting, fainting, and fatigue that no amount of professional willpower can override.
A landmark 2019 study in the British Medical Journal surveyed 32,748 women and found that 86% came to work despite menstrual pain, not because they were fine, but because there was nowhere else to go.5 The researchers estimated 8.9 days of lost productivity per woman per year. That is not because women were absent. It is because they were present while suffering. That is not strength. That is a structural failure dressed up as professionalism, which should be taken seriously by the law.
Now consider India specifically. The National Family Health Survey (NFHS-5), conducted across India between 2019 and 2021, found that only 77.3% of women aged 15–24 use hygienic menstrual methods.6 Nearly one in four young women lacks access to basic menstrual hygiene and that statistic covers only hygiene access, not pain management, not sanitation infrastructure at workplaces, not the absence of any rest provision. The data gap itself is telling: India does not systematically track menstrual health in the workplace because the workplace has never been expected to care about it.
The economic cost has been calculated. Parliamentary debates on the 2022 Menstrual Leave Bill cited estimates of approximately ₹32,000 crore in annual productivity losses attributable to menstrual health issues in India’s formal female workforce.7 This figure encompasses both absenteeism and presenteeism, the woman who stays home and loses income, and the woman who drags herself in and produces less. Both are a cost. Both are avoidable. A policy that gives women one or two days to rest when their pain is acute would reduce this cost, not increase it. The economics are clear. The only question is whether the law is willing to acknowledge them.
This phenomenon has a name: presenteeism. It is the silent, invisible cost of asking people to work when their bodies are telling them not to. A woman who forces herself through acute menstrual pain will produce lower quality work, make more errors, and accumulate more long-term burnout. A woman who rests for one day and returns the next day fully functional is more productive over the month. The employer who refuses menstrual leave is not saving money. They are spending it, invisibly, every month.
THREE STORIES THAT THE LAW HAS NOT YET LEARNED TO TELL
Abstract law is one thing. Real people are another. Here are three stories that illustrate what the absence of menstrual leave actually costs not as statistics, but as lives.
Priya is a domestic worker in a Mumbai household. She works six days a week, from 7 a.m. to 2 p.m., washing dishes, scrubbing floors, cooking. She earns ₹6,500 a month. On the first day of her cycle, the pain is so severe she has fainted twice in the past year. When she stays home, she loses ₹250 roughly four percent of her monthly income, gone in a day. There is no sick leave. There is no understanding employer. There is no law that says she has the right to stay home. The woman in the apartment above her, a software engineer, gets ten days of paid period leave from her employer. Priya gets nothing. The law that governs both their working lives treats them identically by ignoring both of them. That is not equality.8
Constable Rekha works a twelve-hour shift at a police station in Krishnanagar, West Bengal. She stands for most of it. In 2024, the police district piloted a menstrual leave policy one day per month, self-declared, no questions asked. Rekha described it as “the simple luxury of not standing.” She did not abuse the policy. She used it when she needed it. She came back the next day sharper, steadier. Her supervisor reported no disruption. And yet two of her colleagues refused to use it, afraid of being mocked. The policy existed. The culture had not yet caught up.9
Kavita delivers food for a major Indian platform company, the same company that made headlines in 2020 for offering its office employees ten days of paid period leave annually. Kavita rides a bicycle in forty-degree heat, carrying orders across three kilometres of city roads. On her heaviest days, she bleeds through her uniform. She does not get period leave. She is a “partner,” not an “employee” a legal distinction that exists on paper and costs her everything in practice. The company’s progressive policy covers the people in the air-conditioned office. It does not cover the woman who makes their business model possible.10
These are not edge cases. These are the rule. The stories differ in detail but share a structure: the law or the absence of it asks women to bear a monthly health burden that it refuses to acknowledge, and the burden falls hardest on those with the least power to push back.
THE FEMINIST LEGAL FRAMEWORK: WHY FORMAL EQUALITY FAILS HERE
“The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
― Anatole France, The Red Lily (1894)
The dominant objection to menstrual leave is framed as an equality argument: men do not get menstrual leave, so giving it to women treats women differently. This argument sounds reasonable. It is also profoundly wrong, and feminist legal theory tells us exactly why.
Feminist legal scholars, most prominently Catharine MacKinnon, have long argued that the deepest form of sex discrimination is not treating women differently from men but it is treating the male experience as the universal standard against which everyone is measured.11 When labour law was written, it was written around a body that does not menstruate. The “standard employee” was male. When women entered the workforce, they were given formal equality the right to be treated exactly as men are treated. What they were not given was substantive equality: the right to have the law reflect their actual lives. Formal equality gives both sexes the same nothing. Substantive equality gives each what they actually need.
The Supreme Court of India recognised this in Deepika Singh v. Central Administrative Tribunal (2022),12 holding that constitutional equality provisions must be read through the lens of substantive equality, which requires affirmative accommodation of structural disadvantages. In Janhit Abhiyan v. Union of India (2023),13 the bench held that social justice cannot be achieved without affirmative action. A menstrual leave policy is exactly this kind of action: not a privilege, but the accommodation of a documented disadvantage that the law has ignored for too long.
The Sabarimala judgment in Indian Young Lawyers Association v. State of Kerala (2019)14 adds another dimension. Justice Chandrachud’s concurrence held that “biological characteristics cannot be made the basis of denying dignity.” Menstruation was the biological characteristic at the centre of that case. The Court struck down its use as a basis for exclusion. The logic transfers directly to the workplace: if menstruation cannot be used to bar women from a temple, it equally cannot be used to justify leaving women without legal protection at work.
THE CASTE DIMENSION: WHY THIS IS NOT ONLY A WOMEN’S ISSUE
Here is something the menstrual leave debate almost never says out loud: the burden of menstruation does not fall equally on all women. In India, it falls hardest on those who already carry the most, Dalit women, tribal women, women in the informal economy, women who work with their hands rather than at desks. Any policy that does not see this is not just incomplete. It is actively unjust.
In many Dalit and tribal communities across India, menstrual taboos are enforced with particular severity. Women are required to remain in separate spaces, avoid cooking and communal areas, and in some cases leave their homes entirely during menstruation.15 These restrictions, rooted in caste-based notions of purity and pollution, directly affect workplace attendance: a Dalit woman who is required by her community to observe seclusion during menstruation faces a double burden the physical pain of menstruation and the social sanction of non-compliance with caste norms. The law sees neither.
The informal economy compounds this further. Over 85% of India’s working women are employed in the informal sector,16 where no statutory protections of menstrual or otherwise currently apply. Agricultural labourers, construction workers, domestic workers, and street vendors work in conditions where there are no private restrooms, no sanitation facilities, and no flexibility in work schedules. They are the women who most urgently need protection and the women whom every existing menstrual leave framework, by its formal sector focus, entirely excludes.
Even within the formal sector, the law has not caught up with how gendered labour actually works. The NALSA judgment17 established that bodily identity requires legal accommodation regardless of whether Parliament has explicitly addressed it. Transgender and non-binary persons who menstruate are entirely absent from existing menstrual leave discourse, which remains cisgender in its framing. A progressive policy must be explicitly inclusive, covering all persons who menstruate, not only cisgender women.
The lesson of intersectionality is not that the problem is too complicated to solve. It is that the solution must be designed with the most marginalised in mind, not the most visible. A menstrual leave policy that reaches only formal sector office workers is a policy that has solved the easiest part of the problem and congratulated itself for it. The real test is whether it reaches Priya, the domestic worker. Whether it reaches the construction worker on the scaffolding. Whether it reaches the woman in the field. India’s Constitution covers all of them. The law must too.
INDIA’S INTERNATIONAL OBLIGATIONS: CEDAW AND THE GLOBAL CONSENSUS
India does not exist in isolation. It is a signatory to international human rights frameworks that already answer the question of whether menstrual health deserves legal protection. The answer is yes. India has known it since 1993.
India ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on 9 July 1993.18 Article 11(1)(f) of CEDAW requires State Parties to ensure “the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.” Menstrual health is not a peripheral or abstract concern within this provision it is a central component of reproductive health that affects women in every working environment, every single month.
The CEDAW Committee’s General Recommendation No. 24 on Women and Health clarifies that States must prevent discrimination against women on grounds of reproductive function, and must ensure that health services and workplace protections are responsive to gender-specific health needs.19 The UN Special Rapporteur on the Right to Health, in a 2023 report, explicitly recognised menstrual health as a component of the right to health under international law and called on governments to address menstrual stigma, ensure access to menstrual hygiene management, and guarantee appropriate accommodation in workplaces and educational institutions.
India’s international law obligations are not suggestions. They are legal commitments made on behalf of every woman in this country. When the Supreme Court dismissed the Tripathi petition and sent the matter back to the executive, it implicitly acknowledged that the executive has a responsibility to act. CEDAW makes that responsibility explicit: the Ministry of Women and Child Development is not free to indefinitely defer a decision on menstrual leave. It is required by treaty to make one, and to make it properly.
There is also a deeper point about India’s standing in the world. India regularly cites its constitutional values and democratic traditions as distinguishing features in international forums. A country that has recognised menstrual health as a fundamental right in its Supreme Court (Jaya Thakur, 2026) but has no legislation to give that right workplace effect is not in compliance with CEDAW. The gap is not just a domestic policy failure. It is an international credibility problem.
THE CONSTITUTIONAL CASE: THE TOOLS ARE ALREADY THERE
The Indian Constitution, read through its own jurisprudence, provides not merely a permission but a positive mandate for menstrual leave.20
Article 21 — The Right to a Body That Is Respected. Article 21’s guarantee of the right to life has been expanded to encompass the right to health, dignity, bodily autonomy, and livelihood.21 In Dr. Jaya Thakur v. Government of India & Ors. (2026),22 the Supreme Court held explicitly that menstrual health is a fundamental right under Article 21, declaring “A period should end a sentence, not a girl’s education.”23 If menstrual health is a fundamental right in a classroom, it does not expire at graduation. Constitutional rights are not age-capped.24
Article 15(3) — The Constitution’s Own Answer. Article 15(3) expressly empowers the State to make special provisions for women. A menstrual leave policy falls squarely within this power. The objection that it “discriminates against men” has no constitutional footing, Article 15(3) is the framers’ own acknowledgment that equality sometimes requires accommodation of difference.
Article 42 — The Directive to Make Work Humane. Article 42 directs the State to make provision for just and humane conditions of work and for maternity relief. A State that ignores the monthly health burden of its female workforce cannot credibly claim to have secured humane working conditions. Article 42 converts the moral case for menstrual leave into a constitutional obligation.
JUDICIAL DEVELOPMENTS: PROGRESS, CONTRADICTION, AND WHAT COMES NEXT
The Tripathi Petitions (2023–2026): Three Attempts, Three Deferrals. Advocate Shailendra Mani Tripathi brought the menstrual leave issue before India’s Supreme Court three times. His argument was elegant: menstruation is the “biological foundation of maternity.” If the law protects pregnancy under the Maternity Benefit Act 1961, it must logically protect the menstrual cycle that makes maternity possible.25 In 2023, the Court told him to approach the Ministry. In 2024, it told the Ministry to consult stakeholders. In 2026, it told the whole enterprise to wait.
The 2026 dismissal carried an observation from Chief Justice Surya Kant that has been widely quoted and widely criticised: “The moment you say it is compulsory in law; nobody will give them jobs. Nobody will take them in the judiciary or government jobs; their career is over.”26 The bench acknowledged that voluntary menstrual leave by private companies was “excellent.” It then sent the matter back to the Ministry, with no timeline, no mandate, and no consequence for inaction.
There is another layer of intellectual tension in the Court’s own reasoning. The Court’s Handbook on Combating Gender Stereotypes (2023) explicitly instructs judges to resist “assumptions that convert biological realities into professional liabilities.”27 The March 2026 observation that acknowledging menstruation in law will make women unemployable does precisely what the Handbook warns against. The Court, in effect, contradicted its own published guidance.
The Jaya Thakur Landmark (January 2026). The Jaya Thakur judgment held that menstrual health is an integral component of the right to life and dignity under Article 21 and applied a substantive equality framework to hold that the State is constitutionally required to take affirmative steps to address menstrual barriers. The question of whether menstrual health deserves constitutional protection has been answered. The only remaining question is the shape of its protection in the workplace. Parliament has the foundation, the signal, and the obligation to act.
ANSWERING THE COURT: A SYSTEMATIC REBUTTAL OF THE MARCH 2026 REASONING
The March 2026 dismissal raised three concerns. Each deserves a direct, doctrinal answer not because the Court is an enemy of women’s rights (it is not), but because its reasoning will be cited by every opponent of menstrual leave legislation for years to come. It must be answered precisely.
The Court’s First Concern: Mandatory leave will disincentivise employers from hiring women.
The answer: Maternity leave also creates a financial disincentive for discriminatory employers. Nobody has suggested abolishing it.28 The established constitutional position confirmed in Air India v. Nergesh Meerza (1982)29 is that the appropriate response to employment discrimination is to prohibit and punish it, not to remove the right that occasions it. Spain’s experience after 2023 shows no measurable decline in female employment following the enactment of menstrual leave. Bihar’s thirty-three-year track record shows the same. The fear has not been borne out anywhere. It is a hypothesis about anticipated employer behaviour, not a finding about documented employer behaviour.
The Court’s Second Concern: Mandatory menstrual leave will reinforce the stereotype that women are less capable or reliable than men.
The answer: This argument, applied consistently, would prohibit every gender-responsive legal measure maternity leave, the POSH Act, reservation for women in local bodies. The stereotype that women are less reliable is what needs to be combated. Combating it requires legal protection, not legal silence. A woman forced to work in acute pain is not demonstrating capability; she is demonstrating the law’s indifference to her. Moreover, the Court’s own Handbook on Combating Gender Stereotypes explicitly warns against the very reasoning the bench employed. The March 2026 observation treats a biological reality as a professional liability which is precisely the stereotype the Handbook says judges must resist.
The Court’s Third Concern: This is a matter for the legislature, not the courts.
The answer: In Vishaka v. State of Rajasthan (1997),30 the Supreme Court issued binding guidelines on workplace sexual harassment in the complete absence of legislation. In Jaya Thakur (2026), the Court directed states to install toilets and distribute sanitary products in schools again in the absence of legislation. The precedent for judicial direction in the face of legislative inaction on gender rights is well established. The March 2026 dismissal is internally inconsistent with the Court’s own history of gender justice activism. It is not a principled exercise of judicial restraint. It is a selective one.
A final observation: the Policy Circle’s commentary on the March 2026 judgment noted that “the Court’s reasoning sits in irresolvable tension with its own January 2026 ruling in Jaya Thakur.”31 Having held in January that menstrual health is a constitutional right, the Court declined in March to protect it in the workplace effectively creating a fundamental right with no corresponding obligation on the State to secure it where adults spend most of their lives. That is not a sustainable constitutional position. Parliament must resolve this tension by legislation.
LEARNING FROM THE WORLD: WHAT MAKES A MENSTRUAL LEAVE POLICY ACTUALLY WORK
The world has been running experiments in menstrual leave for nearly eighty years. The results are available. What we learn from them is not simply that menstrual leave is possible, it is that the design of the policy determines whether it actually reaches the women who need it. A badly designed policy can be worse than no policy: it exists on paper, generates backlash, and produces no benefit. A well-designed policy changes workplaces.
Bihar (India, 1992) — The Oldest Indian Model. Two paid days per month. Government employees only. No medical certificate. No prior notice required. Over thirty years of uninterrupted operation.32 What Bihar shows: the policy works when it is simple, is not intrusive, and is backed by institutional culture that does not penalise use.
Japan (1947) — The Warning from Asia. Japan’s Seiri Kyuka policy is the world’s oldest menstrual leave law.33 It does not restrict days, requires no certificate, and imposes no financial burden on the employer. And yet uptake has fallen from 26% in 1965 to 0.9% in 2017.34 The reason is clear: Japan passed the law and did nothing else. No sensitisation training. No anti-retaliation protection. No normalisation. Women became afraid to use it. Japan teaches us that a law without cultural scaffolding is a building without walls. It stands, technically. It protects no one.
Spain (2023) — The Gold Standard Design. Spain’s law requires a doctor’s confirmation for incapacitating pain, but critically, the cost is borne entirely by the social security system, not the employer.35 This single design choice eliminates the financial disincentive to hire women that the Supreme Court identified as a risk. No measurable decline in female employment has followed the law’s enactment.36 Spain shows that if you remove the economic argument against the policy, the economic argument for discrimination disappears with it.
South Korea (2001) — The Incentive Inversion. South Korea’s model includes a clever design feature: employers must pay women who do not take their menstrual leave a bonus equivalent to two days’ salary.37 This means women who do not need the leave still benefit, eliminating the resentment that sometimes emerges when colleagues perceive the policy as an advantage for some and not others.
Zambia (2015) — The Dignity Model. Zambia’s “Mother’s Day” policy is the simplest in the world: one day per month, self-declared, no certificate, no explanation, no form to fill.38 If an employer denies it, the employee can prosecute. The design is built on dignity the presumption that a woman knows her own body, and the law’s job is to protect her right to act on that knowledge.
What the comparative analysis teaches India is this: the policy will succeed if it follows Spain’s funding model (ESIC bears the cost for small employers), Zambia’s dignity model (self-declaration, no certificate), South Korea’s incentive design (bonus for non-use if desired), and combines all of them with mandatory sensitisation training to avoid Japan’s cautionary fate. This is not complicated. It is proven. Other countries have done the work. India only needs the will to use it.
THE LEGISLATIVE GAPS: WHAT IS STILL MISSING
Even where progress has been made, six critical gaps remain in India’s legal framework.
The first gap is the absence of any central legislation. State policies are legally fragile stayed by courts, amended by new governments, ignored by employers who face no central enforcement mechanism. Without a statute, women’s right to menstrual leave remains a gift that can be taken back.
The second gap is coverage. Even Karnataka’s 2025 order does not reach the informal sector. The women most in need domestic workers, agricultural labourers, construction workers are entirely excluded from every existing framework.
The third gap is enforcement. No existing state policy specifies penalties for non-compliance, designates a grievance authority, or protects women from informal retaliation after availing the leave.
The fourth gap is privacy. Several existing proposals require medical certification.39 This is invasive, impractical for low-income workers, and fundamentally disrespectful. A self-declaration model as used in Zambia, NLU Delhi, and NALSAR, is both simpler and more dignified.
The fifth gap is culture. Japan’s experience is a cautionary lesson: law without sensitisation does not protect women. It creates a right that no one is safe enough to use.
The sixth gap is intersectionality. Women with endometriosis or PCOS need more than one or two days. Gig workers need coverage. Transgender menstruators need to be named. Dalit women need policies that engage with caste-based menstrual taboos, not just workplace entitlements.
A DRAFT LEGISLATIVE FRAMEWORK: WHAT THE LAW SHOULD LOOK LIKE
The recommendations in this paper are not abstract. They can be reduced to a statutory framework. The following is a proposed outline of the Menstrual Health and Workplace Welfare Act not a full bill, but a structured skeleton that Parliament can enact, courts can interpret, and women can use.
| Provision | Content | Constitutional Basis |
|---|---|---|
| Section 1 — Short Title | Menstrual Health and Workplace Welfare Act, 20__ | — |
| Section 2 — Definitions | “Menstrual leave”, “qualifying employee”, “establishment”, “self-declaration” | — |
| Section 3 — Entitlement | Minimum 2 paid menstrual leave days per month; self-declaration; no medical certificate | Arts 21, 15(3) |
| Section 4 — Coverage | All establishments with 5+ employees; phased 24-month rollout to informal sector | Art 42 |
| Section 5 — ESIC Funding | Cost reimbursed via ESIC for enterprises below 50 employees; removes employer financial burden | Arts 38, 39 |
| Section 6 — Anti-Retaliation | Adverse action based on leave uptake = gender discrimination; penalties + 30-day grievance resolution | Art 14 |
| Section 7 — Workplace Amenities | Free/subsidised menstrual products; private rest areas; functional sanitary disposal in all women’s restrooms | Art 21 |
| Section 8 — Sensitisation | Biennial training mandate for all employees including management; normalisation, not just compliance | Arts 38, 46 |
| Section 9 — Education | MoE to issue parallel guidelines for universities and colleges under RTE framework (n 25) | Art 21A |
| Section 10 — Data | Ministry of Labour to collect disaggregated uptake/compliance data; public report every 2 years | Art 19(1)(a) |
| Section 11 — Review | Parliamentary review every 5 years; independent assessment of discrimination complaints | Art 14 |
Each provision in this framework is grounded in existing constitutional doctrine, proven in at least one global jurisdiction, and designed to address a specific gap identified in Part XI of this paper. The ESIC funding mechanism (Section 5) addresses the Supreme Court’s concern about employer costs. The anti-retaliation provision (Section 6) addresses the concern about employment discrimination. The self-declaration model (Section 3) addresses the privacy gap. The phased informal sector rollout (Section 4) addresses the coverage gap. The sensitisation mandate (Section 8) addresses the culture gap. There is no objection to menstrual leave legislation that this framework does not have a structural answer for.
The only thing this framework cannot provide is political will. That is Parliament’s responsibility.
LAW AS A NORM-SETTER: HOW LEGISLATION BREAKS THE TABOO
There is one more argument that tends to get overlooked in legal scholarship because it is not doctrinal. It is cultural. And it may be the most important argument of all.
Law does not only regulate behaviour. It names things. It decides what is speak able, what is officially real, what society has agreed to take seriously. Before the Vishaka guidelines in 1997, sexual harassment at the workplace was not a legal category in India. It happened constantly. Everyone knew it happened. But it had no name in law, no formal procedure, no institutional channel for redress. The Vishaka judgment gave it a name. The POSH Act gave that name teeth.
And something changed. Not immediately. Not uniformly. But measurably. Cases that had previously gone unreported began reaching internal committees. Conversations that had happened in whispers began happening in HR offices. Women who had endured in silence began using the word harassment because the law had made it a real word, a cognisable concept, something that could be acted upon. The normative effect of the POSH Act on workplace culture is the clearest available precedent for what a Menstrual Health and Workplace Welfare Act could achieve.40
Menstruation is, right now, a workplace secret. Women manage it in bathroom stalls, under desks, in quiet pain that they have been trained since adolescence to make invisible. The culture tells them: this is your private problem. Bring it to work? That makes you a liability. Talk about it? That makes you weak. This silence is not natural. It is enforced. And law specifically, the act of legislating is one of the most powerful tools available to break enforced silence.
When Parliament says: menstrual pain is a legitimate reason to rest it is not just creating an entitlement. It is making a statement. It is saying: we see this. We acknowledge it. We will not require you to pretend it does not exist. That statement codified in law, repeated in employment contracts, reflected in HR policies, enforced by grievance mechanisms changes what women can say to their managers, what managers can say to each other, what employers can claim they do not know.
The Japan case shows that law alone is not enough the taboo can survive a law if nothing else changes. But the POSH Act shows that law, combined with institutional mechanisms and cultural mandates, can accelerate social change dramatically. The question is not whether India is ready for menstrual leave. The question is whether India’s lawgivers are ready to lead the change or whether they will wait, as they always wait, for the culture to change first, while the culture waits for the law.
Somebody has to go first. That is what legislation is for.
CONCLUSION: THE CONSTITUTION DEMANDS MORE THAN THIS
“Injustice anywhere is a threat to justice everywhere.”
― Martin Luther King Jr., Letter from Birmingham Jail (1963)
There is a version of this debate that sounds sophisticated and balanced. It says: be careful about unintended consequences; employers might discriminate; the legislature should decide; voluntary measures are better. That version is intellectually tidy. It is also a way of doing nothing, elegantly.
Let us be direct about what doing nothing actually means. It means Priya the domestic worker loses ₹250 a month to pain that the law refuses to acknowledge. It means Constable Rekha stands for twelve hours on her heaviest day, grateful for a pilot policy that two of her colleagues were too afraid to use. It means Kavita the delivery partner bleeds through her uniform while her office colleagues access the period leave that her company’s progressive HR policy not the law provides to some and not others.
The Supreme Court’s Jaya Thakur judgment provided the constitutional foundation: menstrual health is a fundamental right. The Court’s March 2026 dismissal deferred the workplace application of that right, but it did not repudiate it. This paper has shown that every concern the Court raised employer discrimination, stereotyping, legislative primacy has a structural answer. The framework to address those concerns is available. The constitutional mandate is clear. India’s CEDAW obligations are explicit. The global evidence is unambiguous. Bihar has been proving the policy works since 1992. What remains is political will.
Substantive equality is not about giving women more than men. It is about giving women what they actually need to stand on equal footing. A law that ignores menstrual pain in the name of equality is not delivering equality. It is delivering the appearance of equality at the cost of its substance. India’s Constitution is better than that. India’s women deserve better than that.
And when the law finally says in whatever form it takes, in whatever year Parliament finds its courage that menstrual pain is real, that it deserves accommodation, that a woman does not have to pretend her body is not hers in order to keep her job: that law will do more than create an entitlement. It will break a silence that has lasted long enough. It will make sayable what crores of women have been carrying unsaid for their entire working lives. It will be, in the most literal sense, a sentence that ends a sentence.
*****
Footnotes
1. Simone de Beauvoir, The Second Sex (H.M. Parshley tr, Vintage Books 1989) 267. De Beauvoir’s foundational insight—that ‘woman’ is a social construction imposed on a biological body—captures precisely the way law has historically treated menstruation: not as a health reality but as a mark of difference to be suppressed.
2. Shailendra Mani Tripathi v. Union of India, 2023 SCC OnLine SC 228 (Supreme Court of India); Order dated January 2024 (second petition); Shailendra Mani Tripathi v. Secretary, Ministry of Women & Child Development & Others, W.P.(C) (Order dated 13 March 2026, third petition) (Supreme Court of India).
3. Shailendra Mani Tripathi v. Secretary, Ministry of Women & Child Development & Others (n 4), as reported in The Week, ‘Nobody Will Give Job to Women: SC Rejects Nationwide Compulsory Menstrual Leave Policy’ (13 March 2026) <https://www.theweek.in>; India TV News, ‘Supreme Court Declines PIL Seeking Nationwide Menstrual Leave Policy’ (13 March 2026) <https://www.indiatvnews.com>.
4. Gloria Steinem, ‘If Men Could Menstruate’ (1978) Ms. Magazine. Steinem’s essay is a canonical text in feminist legal theory, exploring how the social hierarchy determines which bodily functions attract legal protection and which are left unprotected.
5. Roosmarijn Jaron et al., ‘Productivity Loss Due to Menstruation-Related Health Issues among University Students and an Employee Population’ (2019) 9 BMJ Open e026186. The study surveyed 32,748 women in the Netherlands and found 86% came to work in pain, with an estimated 8.9 days of lost productivity per woman per year attributable to menstrual symptoms.
6. National Family Health Survey (NFHS-5) 2019–21, Ministry of Health and Family Welfare, Government of India. The survey found that only 77.3% of women aged 15–24 use hygienic menstrual methods, with significant disparities across states. Women in Uttar Pradesh, Bihar, Jharkhand, and rural Rajasthan reported considerably lower access. Across all age groups, access to clean sanitation facilities during menstruation in the workplace remains severely underdocumented.
7. As cited in parliamentary debates on the Right of Women to Menstrual Leave and Free Access to Menstrual Health Products Bill, 2022 (Lok Sabha). The ₹32,000 crore productivity loss estimate aggregates absenteeism and presenteeism data for India’s formal female workforce. See also Dasra, ‘Spot On: Improving Menstrual Health and Hygiene in India’ (2014) for foundational data on the economic cost of menstrual mismanagement in India.
8. Documented in Dasra, ‘Spot On’ (n 9); see also reports by the Self-Employed Women’s Association (SEWA) on menstrual health as a labour rights issue for informal sector workers. Names in case studies are representative composites drawn from documented fieldwork, used to protect individual privacy.
9. Lakshmi Prabha P, ‘Is India Ready for Menstrual Leave? SC Judgment Triggers Nationwide Debate’ The Week (30 March 2026). The fieldwork was conducted towards developing a menstrual leave policy in the police district of Krishnanagar, West Bengal. The journalist reports that women constables described the simple ability to sit down as ‘revolutionary’ and that two constables refused to avail the leave for fear of being mocked by colleagues.
10. Documented in media reports and corporate HR disclosures. Zomato’s annual report (2021–22) confirms that period leave was extended to office employees and other ‘team members’, while delivery partners operate under a separate gig contract that does not include the same entitlements. This structural gap between platform workers and formal employees is a recognised problem in gig economy labour law.
11. Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press 1987) 32–45; Martha Albertson Fineman, The Neutered Mother, The Sexual Family (Routledge 1995) 16–22.
12. Deepika Singh v. Central Administrative Tribunal, (2022) 11 SCC 1 (Supreme Court of India). The Court held that the equality provisions of the Constitution must be read through the lens of substantive equality, which requires the law to acknowledge structural disadvantages and provide affirmative accommodation.
13. Janhit Abhiyan v. Union of India (EWS Reservation), (2023) 5 SCC 1 (Supreme Court of India). The bench held: ‘Substantive equality can take various forms as per the requirements of the disadvantaged person or group; social justice cannot be achieved without substantive equality which means taking affirmative actions.’
14. Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1 (Sabarimala) (Supreme Court of India), per DY Chandrachud J: ‘Notions of purity and pollution which stigmatise individuals have no place in a constitutional order. Biological characteristics cannot be made the basis of denying dignity.’
15. Shilpa Phadke, Shilpa Ranade and Sameera Khan, Why Loiter? Women and Risk on Mumbai Streets (Penguin 2011) 78–84. See also Gopal Guru, ‘Dalit Women Talk Differently’ (1995) 30(41–42) Economic and Political Weekly 2548, documenting how menstrual restrictions fall disproportionately on Dalit women within caste Hindu communities. The practice of menstrual seclusion — confining menstruating women to separate spaces — persists in numerous tribal and Dalit communities and intersects directly with workplace attendance.
16. International Labour Organization, ‘World Employment and Social Outlook: Trends for Women 2018’ (ILO 2018) 21–24. India’s female labour force participation rate in the informal sector exceeds 85%, meaning the vast majority of India’s working women are excluded from every existing menstrual leave framework, all of which cover formal sector employment only.
17. National Legal Services Authority v. Union of India, (2014) 5 SCC 438 (NALSA) (Supreme Court of India). While NALSA concerned transgender rights, its recognition that bodily identity and experience require legal accommodation — regardless of whether Parliament has explicitly addressed them — directly supports the case for menstrual accommodation as a non-negotiable aspect of gender justice.
18. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981). India ratified CEDAW on 9 July 1993. Article 11(1)(f) requires State Parties to ensure ‘the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.’
19. CEDAW Committee, General Recommendation No. 24 (Article 12: Women and Health), UN Doc A/54/38/Rev.1 (1999) [21]: ‘States parties should ensure that measures are taken to prevent discrimination against women on grounds of… reproductive function.’ See also UN Special Rapporteur on the Right to Health, Report on Menstrual Health and Rights, A/HRC/53/61 (2023), explicitly recognising menstrual health as a component of the right to health under international law.
20. Constitution of India 1950, Articles 14 (right to equality), 15(3) (special provisions for women and children), 21 (right to life and dignity), 42 (just and humane conditions of work and maternity relief).
21. Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42 (Supreme Court of India); Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 (Supreme Court of India) — both expanding Article 21 to encompass the right to health, dignity, and humane working conditions.
22. Dr. Jaya Thakur v. Government of India & Ors., W.P.(C) No. 1000 of 2022 (decided 30 January 2026) (Supreme Court of India), 2026 INSC 97. The Court held: ‘The right to life includes the right to menstrual health; access to safe, effective, and affordable menstrual hygiene management helps a girl child attain the highest standard of sexual and reproductive health.’
23. Dr. Jaya Thakur (n 24). The bench explicitly stated: ‘A period should end a sentence, not a girl’s education.’
24. Jaya Thakur (n 24); LiveLaw, ‘Recognition of Menstrual Health as a Fundamental Right Under Article 21’ (February 2026) <https://www.livelaw.in/articles/menstrual-health-fundamental-right-524733>.
25. Maternity Benefit Act 1961, as amended by the Maternity Benefit (Amendment) Act 2017. Section 5 provides 26 weeks of paid maternity leave. The Act makes no provision for menstrual leave, representing the most significant existing legislative gap in India’s gender-responsive labour law framework.
26. As reported verbatim in The Week (n 5). The full observation of CJI Surya Kant read: ‘The moment you say it is compulsory in law, nobody will give them jobs. Nobody will take them in the judiciary or government jobs; their career is over.’
27. Supreme Court of India, Handbook on Combating Gender Stereotypes (2023) 14–18. The Handbook instructs judges to ‘avoid using words, phrases, or expressions that reinforce stereotypical views about women, girls, and gender non-conforming persons’, and to resist ‘assumptions that biological realities… are professional liabilities.’
28. The maternity leave analogy is drawn from the Supreme Court’s own reasoning in Air India v. Nergesh Meerza, 1982 SCR (1) 438, where the Court struck down discriminatory conditions attached to pregnancy without suggesting maternity leave itself should be abolished. The established constitutional position is that the appropriate response to employment discrimination is its prohibition, not the removal of the right that might occasion it.
29. Air India v. Nergesh Meerza, 1982 SCR (1) 438 (Supreme Court of India). The Court struck down airline regulations mandating retirement of air hostesses upon their first pregnancy or at age 35, holding that conditions tied to women’s biological functions constituted unlawful sex discrimination.
30. Vishaka v. State of Rajasthan, (1997) 6 SCC 241 (Supreme Court of India). The Court issued binding Vishaka Guidelines on workplace sexual harassment in the complete absence of enabling legislation, establishing the principle that gender-specific harms require a legal response even when Parliament has not yet acted.
31. Policy Circle, ‘Menstrual Leave Judgment Weakens Article 21’s Promise of Dignity’ (March 2026) <https://www.policycircle.org/opinion/sc-menstrual-leave-judgment>. The commentary argues that the Court’s reasoning in the March 2026 dismissal sits in irresolvable tension with its own January 2026 ruling in Jaya Thakur (n 24).
32. Bihar Government Circular on Special Menstrual Leave for Female Government Employees (1992). The policy has operated without interruption for over thirty years — providing the clearest available empirical refutation of the argument that menstrual leave makes women unhireable or disrupts institutional functioning.
33. Japan Labour Standards Act 1947, Section 68 (Seiri Kyuka). The provision has existed for nearly 80 years. It does not restrict the number of days that can be taken, and requires no medical certification.
34. Japan Ministry of Health, Labour and Welfare, Survey on Status of Women Workers (2017) — recording menstrual leave uptake at 0.9% despite the policy existing since 1947. The dramatic decline from 26% uptake in 1965 is attributed to: (i) shift from manufacturing to service employment; (ii) absence of paid leave for non-union workers; (iii) no employer obligation to normalise the policy through sensitisation. Japan’s experience is the most important global data point for understanding that law without cultural change does not protect women.
35. Spain, Ley Orgánica de Salud Sexual y Reproductiva y de la Interrupción Voluntaria del Embarazo (as amended, 2023), Article 38 bis — entitling women experiencing incapacitating menstruation to three days of paid leave per month, extendable to five in exceptional cases. Costs are borne entirely by the social security system, not by the employer.
36. Euronews, ‘Spain’s Menstrual Leave: The Countries That Have Already Tried and Tested Days Off for Period Pain’ (2023) <https://www.euronews.com>; Re-Solve Global Health, ‘How Menstrual Leave Can Create More Equitable Workplaces’ (2024). No measurable decline in female employment has been documented in Spain in the period following enactment.
37. Republic of Korea, Labor Standards Act 1953 (as amended), Article 73: ‘An employer shall grant a female worker, upon her request, one day of menstrual leave per month. Where a female worker uses the menstrual leave, the employer shall pay her regular wages for the day.’ The Korean model’s most innovative design feature is the financial bonus for non-use — allowing women who do not need the leave to benefit economically rather than feel pressure to forgo it.
38. Zambia, Employment Code Act (2017), Section 53A (‘Mother’s Day’). Women are entitled to one day off per month without producing a medical certificate or any explanation. If an employer denies the entitlement, the employee may lawfully prosecute the employer. The Zambian model is widely cited in comparative labour law literature as the best-practice design for maximising uptake by minimising procedural barriers.
39. The Right of Women to Menstrual Leave and Free Access to Menstrual Health Products Bill, 2022 (introduced in Lok Sabha by Shashi Tharoor, MP). The Bill proposed three days of paid menstrual leave for women and transwomen employees, and extended the benefit to students. It also required employers to provide free menstrual hygiene products. The Bill lapsed without being put to a vote.
40. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (POSH Act). Before Vishaka (n 42) and the POSH Act, sexual harassment at work was legally invisible in India. The Vishaka guidelines made it nameable and legally cognisable. Within a decade, sexual harassment cases that had previously gone unreported began reaching internal committees, courts, and the public domain. The normative effect of the POSH Act on workplace culture — making what was previously unsayable speakable — is the clearest available precedent for what a Menstrual Health and Workplace Welfare Act could achieve.