Author: Kapil Gaikwad
The day was full of legal twists for the Karnataka High Court on December 9, 2024. On that morning, Justice Jyoti M issued an interim stay against the state government’s path-breaking menstrual leave policy. In the afternoon, the same court recalled its stay on the same policy after the Advocate General rushed for reconsideration during lunchtime. This whiplash of judicial decisions has made Karnataka’s policy of menstrual leave a nationally debated issue on women’s workplace rights, executive powers, and constitutional governance.
The Policy That Sparked the Storm
The state government of Karnataka issued a notification on November 20, 2024, that henceforth, all industrial establishments would provide one paid menstrual leave per month for women employees in the age group of 18-52 years. Thus, it comes out to be 12 paid leaves in a year for permanent, contractual as well as outsourced workers in all the establishments falling under the Factories Act 1948, Karnataka Shops and Commercial Establishments Act 1961, among several other labour statutes.
The policy is unparalleled in its scope. While Bihar had, in 1992, introduced menstrual leave only for government employees, or Kerala that expanded it mainly to female students, Karnataka tried to implement the policy across public and private sectors in one go, aiming at approximately 50 lakh women workers. Most remarkably, the policy does not need any medical certification; it trusts women to decide when they need this leave.
The legal challenge
The Bangalore Hotels Association and Avirata AFL Connectivity Systems Limited filed petitions to challenge the notification on various grounds. Their primary argument is an executive one, since this was an order issued by the government through executive fiat, for which there was no legislatively-based support. They argued that the labour statutes currently enacted clearly spell out the leave system, and the government does not have authority to extend substantive benefits by mere executive notification.
The petitioners have also resorted to Article 14 of the Constitution on the ground that the policy is discriminatory and unconstitutional, although the exact equality challenge is somewhat vague. Moreover, they mentioned that the notification was issued without proper consultation with industry stakeholders, a serious procedural gap that Justice Jyoti M pointed out during the hearing.
Finally, the petitioners warned that such a policy would carry grave economic repercussions, placing undue burdens on establishments without providing any means of compliance and while ignoring operational disruptions.
Constitutional framework: Competing principles
Constitutional analysis will involve competing principles that both support and complicate such policies.
Supporting the Policy: Article 15(3) allows the state to make special provisions in the case of women and children, which underscores that formal equality in some instances perpetuates substantive inequality if groups have different circumstances. Menstrual leave is a form of protective discrimination, as about 90 percent of women experience menstrual discomfort that affects their work productivity.
Article 21 protects the right to life, health, and dignity. Forcing women to work through debilitating menstrual pain could amount to a violation of these rights. Article 42’s directive to secure just and humane working conditions further supports the accommodation of their reproductive health needs.
The rule-making power of the executive is generally confined to carrying out statutory provisions and not extending them substantially.
The Factories Act, amongst other relevant statutes, already have extensive leave frameworks, none of which contemplate menstrual leave. This gives rise to a legal vulnerability: can the executive add a new category of compulsory leave that the statute does not permit or envisage?
The government may, of course, argue that the notification is supplementary to rather than in derogation of existing statutes, or, alternatively, that executive action under Articles 15(3) and 21 imposes constitutional obligations. However, introducing menstrual leave via legislative amendment would have been the stronger legal position, enabling fuller debate and stakeholder consultation with clearer legal authority.
Global and National Context
What is going on in Karnataka represents one of several such experiments across the globe. Japan enacted menstrual leave legislatively in 1947, with clear legal authority. Yet uptake is extremely low-less than 10 percent of eligible women avail themselves, due to stigma in the workplace. Spain was the first nation in Europe to provide paid menstrual leave in 2023, but it also did so through legislation that required medical certification. South Korea has offered unpaid menstrual leave since 2001, but utilization remains very low due to cultural barriers.
Having a more limited scope, Bihar’s administrative order for government employees within India has seen less legal challenge. Framing Kerala’s approach as attendance relaxation rather than paid leave also managed to skirt any possible conflict with labour statutes for students. These more cautious approaches reveal that other states recognized legal complexities with which Karnataka must now contend.
Empowerment vs. perpetuating the stereotypes: The core debate
The controversy raises profound questions about the best route toward workplace gender equality.
The case for mandatory leave: Proponents argue that menstruation is a biological fact for half the population in the workforce, and accommodation of it is a matter of ordinary dignity and equality. Legal mandates ensure uniformity, bar discrimination, and shield the most vulnerable women workers who lack negotiating power. Menstrual pain causes significant productivity loss, as many studies have pointed out, and giving dedicated leave acknowledges the fact that menstruation is neither sickness nor aberration but a normal physiological process.
Counterarguments: Critics fear that the grant of menstrual leave may discourage, especially in industries already facing staff shortages, hiring of women by employers. They also contend that the policy creates a privacy issue as the menstrual cycles would need to be disclosed and reinforces the stereotype of women being less reliable workers. Instead of supporting gender-based categories, some feminists suggest that generous flexible leave policies be introduced for all employees. These individuals claim that this strategy provides the necessary flexibility without discriminating against women.
The slow uptake in countries that have granted long-term menstrual leave rights to women indicates the stigma attached to menstruation and negative workplace culture cannot be changed simply through legislation. The legal rights may remain underutilized unless considerable and ongoing efforts are made to normalizing menstruation in public discussion parallel to the legal rights.
The way forward
The Karnataka High Court has to perform a delicate balancing act. It has to weigh the progressive constitutional values underlying the policy against legitimate concerns about executive overreach and proper legal procedure.
The possible outcomes are varied. The court may of course uphold the policy and find that it furthers constitutional values under Articles 15(3), 21, and 42. It may strike down the notification as ultra vires the existing statutes and compel the government to bring in menstrual leave by proper legislation. It may take a middle path by upholding the objectives of the policy while setting it aside to the extent operational difficulties persist.
The good news, regardless of the immediate legal outcome, is that the controversy has achieved something significant: it has created a national conversation about menstrual health in workplaces. Menstruation is no longer a whispered private matter but a policy issue.
Recommendations for sustainable reform
Based on comparative analysis and legal considerations, a number of recommendations emerge:
Pursue Legislative Amendment: Pursue a legislative amendment because amending the relevant state labour laws will provide clear legal authority, allow structured debate, and ensure durability against legal challenge.
Consult Stakeholders: The consultations with women workers, employers, labour unions, and industry representatives can help the governments identify practical concerns and build wider support.
Provide Implementation Guidelines: It is important to have clear guidance on privacy protections, operational adjustments, phase-in periods, and enforcement mechanisms.
Addressing Cultural Stigma: Legal requirements will hardly guarantee that women will be comfortable enough with taking menstrual leave. Public awareness and workplace education are required in order to normalize menstruation.
Consider Flexible Approaches: Rather than creating a category for menstrual leave that requires disclosure, expanding general flexible health leave protects privacy and provides accommodation.
Support Small Businesses: A tiered approach mandating menstrual leave for larger establishments while encouraging smaller businesses represents a balance between progressive goals and practical realities.
References
Bar and Bench. “Hours after staying policy on paid menstrual leave for women, Karnataka High Court recalls its order.” Available at:
LiveLaw. “Karnataka High Court Stays Govt Order to Provide Menstrual Leave in Registered Industrial Establishments.” Available at:
Deccan Herald. “Karnataka HC Stay: Menstrual Leave Policy Notification Put on Hold.” Available at:
India Legal. “Karnataka High Court halts state’s mandatory menstrual leave order pending review.” Available at:
LawRbit. “Karnataka Introduces Menstrual Leave Policy 2025.” Available at:
The Logical Indian. “Karnataka’s Landmark Menstrual Leave Policy: How It Compares with Other Indian States.” Available at:
DrishtiIAS. “Issue of Menstrual Leave for Women.” Available at:
https://www.drishtiias.com/daily-updates/daily-news-analysis/issue-of-menstrual-leave-for-women
The Week. “The debate around menstrual leave in India.” Available at:
https://www.theweek.in/news/india/2024/09/02/the-debate-around-menstrual-leave-in-india.html
Global Woman Leader. “Menstrual Leave Policies from 7 Countries across the Globe.” Available at:
Euronews. “Spain’s menstrual leave: The countries that have already tried and tested days off for period pain.” Available at:
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