The Supreme Court of India on Friday refused to entertain a public interest litigation seeking a nationwide policy providing paid menstrual leave for women students and workers, observing that such a mandatory provision could have unintended consequences and reinforce gender stereotypes in the workplace.
A bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi said that although the intent behind the plea might be welfare-oriented, the practical realities of the job market could lead to counter-productive outcomes for women.
“These pleas are made to create fear, to call women inferior, that menstruation is something bad happening to them... this is an affirmative right... but think about the employer who needs to give paid leave,” the bench observed during the hearing.
The court was hearing a PIL filed by Shailendra Mani Tripathi, which sought a uniform policy mandating menstrual leave across the country.
Senior advocate M. R. Shamshad, appearing for the petitioner, submitted that some states and private organisations have already introduced policies allowing menstrual leave.
He pointed out that the Karnataka government has formulated a policy permitting menstrual leave, while some private organisations have voluntarily provided similar facilities. He also cited policies in Odisha and relaxations in educational institutions in Kerala.
“Voluntarily they are giving, then it is excellent. That is a very good thing. But the moment you introduce it as a compulsory condition in law, you do not know the damage it will do to the career of women. Nobody will give them responsibilities, even in judicial services, a normal trial will not be assigned to them,” the CJI said.
During the hearing, the bench highlighted the risk of “unintended consequences”, suggesting that a mandatory leave policy might discourage private employers from hiring women.
“The moment you introduce it as a compulsory condition in law, you do not know the damage it will do to the career of women,” CJI Kant remarked.
“ Nobody will give them responsibilities... This can be harmful to their growth,” the bench added.
Justice Bagchi echoed similar concerns, observing that while affirmative action is constitutionally recognised, such measures must also account for practical realities in the job market.
“Look at the practical reality in the job market. The more unattractive the human resource, the less is the possibility of assumption in the market. Will any employer be happy with the competing claims of other genders,” Justice Bagchi asked.
At the outset, the bench also raised the issue of the petitioner’s locus, noting that no woman herself had approached the court seeking such relief.
It also pointed out that this was the third petition filed by Tripathi on the same issue.
The first petition was dealt with by the court in 2023, when the bench permitted the petitioner to submit a representation to the Union Ministry of Women and Child Development.
Tripathi again approached the court in 2024, stating that the Centre had not responded to his representation. That petition was disposed of in July 2024 with directions to the government to take a decision.
“These petitions are deeply rooted, designed PILs. You are not a bona fide petitioner. This is basically only to create a type of impression in young women that you still have some natural issues and you are not at par with male persons and you cannot work like them during a particular time,” the bench observed initially.
However, while declining to entertain the plea, the court directed that the petitioner’s representation be considered by the competent authority.
“The petitioner has made a representation to the authority. It seems to us that whatever was required to be done at the end of the petitioner, he has done for the welfare of young women. It is not necessary for the petitioner to approach the court time and again and seek a positive mandamus.
“We direct that the competent authority shall consider the representation directed to be considered by this court by order dated February 24, 2023, and July 8, 2024, for modelling a policy in consultation with all,” the bench ordered.
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