By prioritising "employer reluctance" over social justice, the judiciary risks dismantling decades of progress in labour protections and workplace equality
In yet another setback for labour protection in India, the Supreme Court of India recently declined to entertain a public interest litigation (PIL) seeking the introduction of a nationwide menstrual leave policy for working women and female students.
The petition, filed by lawyer Shailendra Mani Tripathi, requested the court to direct the government to frame a policy granting women two or three days of menstrual leave each month to cope with the physical discomfort and health difficulties associated with it.
His arguments cited international best practices and India’s commitment to international conventions such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). It also pointed out that such a protection would be necessary to advance the constitutional guarantee of the fundamental right to dignity under Article 21.
The court’s logic
While hearing the matter, a two-judge bench led by Chief Justice Surya Kant expressed reservations about judicially mandating such a policy.
What should be the grounds on which one must initiate a policy? Based on the progressive objective of furthering social justice for women in the workplace, or to submit to employers' supposed resistance to it?
“The moment you introduce this as a law and make it a compulsory condition, you may not be able to assess the amount of damage you may do to their (women's) careers. Nobody may give them big responsibilities. In judicial services, people may not assign trials to them,” the court observed.
Meanwhile, the court encouraged “voluntary” initiatives by state and private employers.
Also read: Menstrual leave debate grows after Supreme Court rejects nationwide policy plea
The bench opined that a mandatory provision for menstrual leave would have negative and unintended consequences for the labour market, especially in the private sector. It warned that a policy centred solely on the question of menstruation could result in reinforcing the already existing societal perceptions that women are not equal to their male counterparts, which may potentially affect their career progression and participation in the workforce.
Problematic logic
The argument that menstrual leave or any such labour protection would make employers unwilling to hire women is deeply problematic on multiple grounds.
The fundamental question is what should be the grounds on which one must initiate a policy: is it to be based on the progressive objective of furthering social justice for women in the workplace, or is it to submit to employers' supposed resistance to it?
Unfortunately, the court appears to have sided with the latter. Unwittingly or otherwise, it appears to argue that prospective legislation must privilege the employers’ freedom to discriminate on a pedestal, over the objective of promoting workplace protection.
It is, in fact, directly opposite to the very purpose of labour laws.
History of labour rights
Historically, one of the major factors that necessitated the emergence of labour protection laws was the apathy shown by employers towards employee well-being. This was also based on the wide social consensus that unrestricted labour markets tend to prioritise efficiency and profit over the welfare, health, and dignity of workers.
If one places the fear of how employers would react in the face of protective legislation on a pedestal as the key factor in enacting legislation, the logic of labour market regulation itself collapses.
It is important to note that even the most accepted labour protections in today’s world faced similar objections when they were introduced. When the minimum wage was proposed, it was argued that it would ruin businesses. When laws regulating working hours were introduced, critics argued that employers would simply hire fewer workers or shift operations elsewhere.
Accepting the SC's logic is walking backwards in history by throwing away decades of progress in reproductive health and family responsibilities as legitimate considerations within labour policy.
Maternity rights were severely attacked based on spurious claims that these would make women workers more “expensive” to hire, as a result of which employers would be reluctant to hire them.
Long-term view
But eventually, society as well as legal institutions recognised that such protections were necessary because unregulated labour markets would fail to protect the interests of workers. Imagine if courts had accepted employers’ unwillingness as a ground to deny labour rights, almost all the labour protections we have today would have never emerged at all.
Though the court stressed the policy nature of the issue, some legal experts have questioned the sensitivity of its observations.
Also read: Karnataka women govt employees to enjoy paid menstrual leave
Advocate Ramapriya Gopalakrishnan, practising before the Madras High Court, pointed out that although menstrual leave rights are primarily a matter to be decided by the legislative and executive branches of the state, the judiciary could have adopted a more sensitive approach, especially considering the historical disadvantages faced by women in the workplace.
Onus on victims
But there is a much deeper issue with this argument. Who should answer for discrimination? Or who should bear the responsibility? The segment that faces, or the group that imposes discrimination?
The problem with the logic mentioned above is that it shifts the burden of discrimination back to the victims, in this case, the women themselves.
The real discrimination is what the market is doing, that is, not hiring enough women or promoting them enough, even further resisting any attempts to secure their well-being at workplaces by threatening that they will unleash more discrimination. When the court subscribes to this logic, it effectively fails to address the real discrimination and shifts the burden back to the victims.
Employee prejudices
The constitutional legal system in India upholds equality and the well-being of workers, especially from vulnerable segments. Therefore, the appropriate response to potential discrimination should be stronger enforcement of anti-discrimination principles.
The prejudices of the employers cannot jeopardise this basic constitutional norm. If this logic is further allowed to extend, every protective labour right, including maternity leave, can be challenged using the same market logic.
Accepting such logic is walking backwards in history by throwing away decades of progress in reproductive health and family responsibilities as legitimate considerations within labour policy.
Also read: Bengaluru hotels body moves HC against govt's mandatory menstrual leave order
It is also worth noting that such views undermine the possibility of labour markets adapting to a changing regulatory environment. Historically, better regulatory standards ensured long-term adaptability for businesses. In short, businesses all over the world have accepted and incorporated social realities into their operations, even when costs have risen as a result.
Indeed, the widespread acceptance of environmental safeguards by industries is a good example of this general trend.
Changing World
It will be a grave injustice to the women workers in India if the institutions continue to ignore the biological realities of their lives.
Menstruation as a biological process is accompanied by symptoms such as severe cramps, fatigue, nausea and heavy bleeding. Further, in many women, medical conditions such as endometriosis and polycystic ovary syndrome (PCOS) can aggravate the effects of menstruation. It is a minimum requirement of a decent workplace to provide institutional support to such women during their menstrual period.
Expecting women to work without a break during this time is cruel, especially as it comes from an assumption that workplaces are designed around male biological norms.
Global examples
Many jurisdictions around the world have already adapted to this demand. Countries such as Japan, South Korea, Indonesia and Taiwan have long provided for menstrual leave in different forms. Recently, Spain joined the group by introducing paid leave for severe menstrual pain.
In India as well, the debate has now moved beyond the abstract theoretical possibilities. Recently, Karnataka took a major step by introducing one day of menstrual leave per month. However, as expected, the policy has faced strong resistance from employers and is currently under judicial review by the High Court of Karnataka.
Naturally, the trade unions have reacted strongly. The Karnataka State IT/ITeS Employees Union (KITU), which has emerged as a key voice of employees in the IT industry, has impleaded itself in the case pending before the High Court, seeking to defend the state’s proposed policy. It has also criticised the Supreme Court’s observations, arguing that concerns about employer reluctance cannot be used to deny workplace protection.
This debate is part of a global recognition of menstrual health as a workplace concern. India, being one of the largest labour markets, cannot stand aloofwhile a significant proportion of its workforce is subjected to injustice simply because employers do not care.
(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal)
