The debate around menstrual leave in India has slowly moved from social discussions into the courtroom. Yet the way the issue is discussed in law reveals a deeper structural problem. The legal system frequently acknowledges women’s biological realities, but the structure of work and labour regulation itself has historically been designed without fully accounting for them. As a result, questions of equality often emerge within frameworks that were not originally built with women and trans persons’ experiences in mind.
The recent observations of the Supreme Court in the menstrual leave litigation illustrate this tension clearly. On 13 March 2026, while disposing of a writ petition filed by Shailendra Mani Tripathi, with Shashank Singh as Advocate-on-Record, seeking directions for menstrual leave for women employees and students, the Court expressed concerns about making such leave mandatory through legislation. During the hearing, Senior Advocate M.R. Shamshad, appearing on behalf of the petitioner, pointed out that several organisations and institutions had already begun granting menstrual leave voluntarily as part of workplace welfare measures. According to the submission, the petition was intended to encourage a broader policy framework rather than impose rigid obligations without consultation.
The bench, however, raised questions about the broader implications of transforming such practices into a legal mandate. The Chief Justice observed that if the law guarantees a monthly leave specifically for women, employers might become reluctant to hire them or assign important responsibilities. According to the Court, mandating menstrual leave could unintentionally create the perception that women are not able to work at par with men. The bench also emphasised the difference between voluntary workplace practices and legally binding obligations, noting that while voluntary initiatives by employers may be beneficial, a compulsory statutory requirement could produce unintended consequences in labour markets.
Justice Joymalya Bagchi also highlighted the tension between constitutional protections and market realities. While acknowledging that affirmative action for women is constitutionally recognised, he observed that labour markets often respond to economic incentives and workplace efficiency concerns. From a business perspective, additional statutory obligations imposed on employers could potentially influence hiring preferences in ways that might disadvantage women employees.
At the same time, the Court questioned whether it could issue a direct judicial direction to the Union Government to introduce such a policy. The bench indicated that matters involving labour policy and workplace regulation fall primarily within the domain of the legislature and the executive. As a result, the Court declined to issue a mandamus compelling the government to introduce menstrual leave legislation and instead directed the competent authority to consider the petitioner’s representation and examine the issue in consultation with relevant stakeholders.
These remarks are significant not merely for their immediate legal effect but also for the broader conversation they shape. By framing menstrual leave as a potential risk to women’s employment prospects, the Court shifted the focus of the debate from the legitimacy of menstrual health concerns to the economic consequences of recognising them through law.
This observation did not arise in isolation. The issue has been before the Supreme Court multiple times over the past few years.
The first petition was filed in 2023 under Article 32 of the Constitution in Shailendra Mani Tripathi v. Union of India (W.P. (C) No. 172 of 2023). The petition sought directions to the Union and all States to frame a policy granting menstrual pain leave to female students and working women, drawing support from the framework of the Maternity Benefit Act, 1961. The Supreme Court did not issue a direction at that stage. Instead, the Court observed that the issue involved policy considerations and asked the petitioner to submit a representation to the Union Ministry of Women and Child Development, which could examine the matter at a policy level.
Following the Court’s order, a representation was submitted to the Ministry as well as to the Chief Secretaries of all States and Union Territories. The representation highlighted that many adolescent girls and working women experience severe discomfort during menstruation and that a policy recognising menstrual leave could help protect dignity, health and participation in education and employment.
When no response was received, the issue returned to the Supreme Court again in 2024 through another petition, W.P. (C) No. 327 of 2024. The Court again declined to issue a direct judicial direction but asked the Ministry of Women and Child Development to examine the issue in consultation with stakeholders and consider whether a model policy on menstrual leave could be formulated. Following this order, the Ministry scheduled a meeting in August 2024 to discuss the matter.
At the same time, developments were also taking place at the state level. Some governments began exploring policies recognising menstrual leave. Odisha introduced a policy granting one day of menstrual leave per month, amounting to twelve days annually for women government employees under the age of fifty-five. Later, Karnataka approved the Menstrual Leave Policy, 2025, granting one day of paid menstrual leave every month to women employees across both government and private sectors. The policy explicitly recognised women’s health as a workplace concern and aimed to create a more inclusive working environment.
Despite these developments, the issue again reached the Supreme Court in 2026, when the Court reiterated its concern that making menstrual leave mandatory by law might have unintended consequences in the labour market. The Court suggested that employers might view women as a less attractive workforce if such a legal obligation existed.
This raises a difficult question in labour law. If protective policies might lead to discrimination, should the law avoid creating such protections? Or should the law instead address discrimination while still recognising biological realities?
This dilemma is not new. A similar debate existed when maternity protections were introduced. The Maternity Benefit Act, 1961, which now provides up to twenty-six weeks of maternity leave, was enacted precisely because childbirth is a biological process unique to women. Without legal protection, women would face serious disadvantages in employment during pregnancy and childbirth.
When maternity benefits were expanded, concerns were also raised that employers might hesitate to hire women because of the financial cost. Yet the law still recognised maternity leave as necessary for dignity and equality. In other words, the legal system accepted that biological realities should not become grounds for excluding women from economic participation.
The comparison with menstruation therefore becomes important. If childbirth is recognised as a legitimate reason for workplace accommodation, the question arises as to why menstruation is treated differently.
The Constitution of India itself allows the State to make special provisions for women. Article 15(3) permits such measures, Article 21 protects dignity and bodily autonomy, and Article 42 directs the State to ensure humane conditions of work and maternity relief. Courts have also emphasised women’s dignity in employment. In Municipal Corporation of Delhi v. Female Workers (Muster Roll), the Supreme Court extended maternity benefits to daily wage workers, recognising that women working to earn their livelihood must be treated with fairness and dignity.
More recently, in Dr. Jaya Thakur v. Union of India, the Court recognised menstrual hygiene infrastructure as an issue connected to dignity and education, directing authorities to ensure access to sanitary pads and proper sanitation facilities for schoolgirls.
However, when the discussion moves from menstrual hygiene to menstrual leave in the workplace, the legal conversation becomes noticeably more cautious.
International experiences show that several countries have attempted to address this issue through different models. Japan introduced menstrual leave under Article 68 of its Labour Standards Act as early as 1947. Indonesia allows women to take leave during the first two days of their menstrual cycle if they experience pain. South Korea provides one day of menstrual leave per month, while Taiwan recognises menstrual leave within its gender equality employment framework. Spain has recently adopted a policy treating severe menstrual pain as a form of temporary incapacity for work within its social security system.
These models are not perfect. In many countries women hesitate to use menstrual leave because of social stigma or fear of workplace backlash. Studies have shown that even where menstrual leave exists, many women avoid using it because they worry about being perceived as less capable employees. This is even more complex for trans and intersex individuals.
But these examples demonstrate that legal systems are at least attempting to recognise menstruation as a workplace issue.
“Menstrual justice cannot be reduced to a simple question of granting leave. It requires recognising that labour systems were historically designed around assumptions that did not fully consider women and trans people’s bodies and experiences.”
Another important dimension often missing from the debate is the experience of women engaged in physically demanding labour. Discussions about menstrual leave usually focus on corporate jobs and office environments. Yet millions of women in India work in construction, agriculture, sanitation and other forms of manual labour. For them, menstrual pain combined with physically demanding work can make ordinary tasks extremely difficult.
Ignoring these realities in the name of formal equality risks creating a system where women must silently endure physical pain simply to appear equally productive.
The Supreme Court’s concern that mandatory menstrual leave could harm women’s careers reflects the complexity of the issue. But the challenge for policymakers is not whether menstruation should be acknowledged. The challenge is how to design policies that recognise biological realities while also preventing discrimination in employment.
Menstrual justice cannot be reduced to a simple question of granting leave. It requires recognising that labour systems were historically designed around assumptions that did not fully consider women and trans people’s bodies and experiences.
Until workplace policies begin to address these realities more openly, debates about equality may continue to discuss women’s issues while still leaving women’s lived experiences at the margins of law.