Why Karnataka HC ordered implementation of state’s menstrual leave policy

What the High Court said

The court anchored its reasoning in the Constitution, specifically Article 15(3) – which allows the state to make special provisions for women and children, and Article 42 – which mandates provisions for just and humane conditions of work. Justice Nagaprasanna observed that while the law proclaims men and women as equals, “they are biologically distinct.” He wrote: “To acknowledge such differences, particularly in matters concerning health, dignity, and bodily autonomy, is not to transgress the guarantee of equality, but to give it substantive meaning.” This observation leans on the legal principle of substantive equality, which recognises that treating everyone exactly the same can sometimes perpetuate biological or historical disadvantages and that true equality may require accommodating these differences.

The judgment extensively discussed the discomfort women face during menstruation, such as dysmenorrhoea – which causes severe pelvic cramps, fatigue and emotional upheavals. The court noted that workplaces are seldom designed with menstruating individuals in mind. The lack of access to proper facilities, it added, forces individuals to resort to makeshift alternatives, increasing the risk of infections. Compounding these physiological challenges, it said, is the “pervasive stigma” that often deems menstruating women “impure”.

“Thus, the call for menstrual leave, is not a plea for privilege, but an assertion of dignity, fairness and humane understanding within the spaces women inhabit,” the court noted.

The judgment also paid attention to the unorganised sector. While the state government policy covers only the organised sector, the court highlighted the plight of domestic workers and daily wage labourers who remain outside its purview. It noted that these women are placed in a position of “coalesced vulnerability” due to economic burdens and structural inequalities. The court held that “it becomes incumbent upon the state to undertake comprehensive measures” to sensitise all sectors and tap into the unorganised workforce to extend these benefits.

To contextualise its ruling, the judgment traced the global evolution of menstrual leave, noting that the Soviet Union introduced such a policy as early as 1922, followed by Japan in 1947 and countries like Indonesia, South Korea, Taiwan, Vietnam and Zambia in subsequent years.

The High Court drew heavily from a Supreme Court judgment delivered in January this year by Justices J B Pardiwala and R Mahadevan that recognised access to menstrual hygiene as a fundamental right under Article 21 of the Constitution – which guarantees the right to life and personal liberty. The apex court had ruled that “[t] he absence of menstrual hygiene measures entrenches gendered disadvantage by converting a biological reality into a structural exclusion” and directed the government to ensure free sanitary napkins and functional toilets in all schools.

The Supreme Court had been more cautious when faced with a public interest litigation demanding mandatory menstrual leave across all establishments in March. Hearing the case, Chief Justice of India Surya Kant warned that compelling private employers to provide this leave could inadvertently discourage them from hiring women. Noting that such a mandate could be harmful to women’s career growth and lead to employers shunning them for responsibilities, the court declined to issue any directions, instead asking the Union government to consider framing a model policy.

A separate plea by the Bangalore Hotels Association challenging the Karnataka menstrual leave policy is pending before another single-judge bench of the Karnataka High Court. The judge had, in December, stayed the policy before recalling it hours later at the government’s request.

Separate petitions demanding menstrual leave for employees with particular government departments have been pending before the Madras and Kerala High Courts since earlier this year.